JUDGMENT

Zafar Ali, J. - This is a miscellaneous first appeal against an order refusing an application for execution by the alleged assignee of a part of a decree. Nobody has appeared in this Court on behalf of: the 'respondents 'who opposed the application successfully in the Court below, and the appeal had been heard ex parte. The facts are as below:

2. A lady of the name of Lajwanti, joining with herself Jaswant Rai and others as co-plaintiffs, brought a suit for possession of certain lands left by her father.. Jashwant Rai and the other plaintiffs were strangers to her but they had undertaken to finance the litigation and in consideration for that she had assigned two-fifths of the property in suit to them. The suit was dismissed by the Chief Court, but the plaintiffs appealed successfully to the Privy Council and obtained a decree on 29th January A.I.R. 1924 P.C. 121. That decree was, however, amended by the Judicial Committee on 19th March and according to that amendment the suit was decreed in favour of Mt. Lajwanti alone to the exclusion of Jaswant Rai and other plaintiff's. Their Lordships pronounced judgment in favour of Mt. Lajwanti, but with the addition that the judgment was to be:

without prejudice to the appellants other than Mt. Lajwanti to recover in respect of any conveyance or assignment made or of any contract to convey or assign such share of the property recovered under the Judgment as may appertain to them in respect of such conveyance, assignment or contract.

3. Jaswant Rai then brought a suit for a declaration that he and certain other persons who were impleaded as defendants 8 to 16 were entitled to two-fifths of the property according to the award of 1922 or in the alternative for a declaration and injunction that the other defendants including Mt. Lajwanti should not realize the produce of the two-fifths of the property which belonged to the plaintiff and defendants 8 to 16. Defendants 8 to 16 were co-plaintiffs in the former suit but the real defendants in the former suit were not made defendants in this case. Jaswant Rai and the lady eventually came to terms which were reduced to writing and the compromise thus entered into was filed in Court and a decree followed embodying the terms of the compromise. Jaswant Rai and the lady then jointly made an application for execution of the decree of His Majesty in Council, but soon after that the lady and Jaswant Rai fell out again and she refused to proceed with her application for execution stating that she had been the victim of a fraud, and that there was no valid assignment of the decree to Jaswant Rai.

4. The executing Court came to the following conclusions:

(1) That the alleged fraud was not proved.

(2) That as the compromise went beyond the scope of the suit, so much of the consent decree as was not within the ambit of the suit must be ignored.

(3) That though according to the compromise, two-fifths of the decree were assigned, and Jaswant Rai was empowered, to take possession of two-fifths of the property by taking out execution jointly with Mt. Lajwanti, this was beyond the scope of the suit and could not be given effect to. (Here it was observed by the Court below that the compromise was not registered but it did not say that it was inadmissible in evidence for want of registration).

(4) That as the assignee of a part of the decree Jaswant Rai had no power to apply for execution.

5. Conclusions Nos. (2) and (3) do not appear to be sound. There was no denying the fact that the lady made the assignment and as it was reduced to writing and embodied in a decree. It fulfilled the necessary conditions and fell within the purview of Order 21, Rule 16, Civil P.C. Further it is clear that it did not require registration because it had been incorporated in a decree and also because the assignment of a decree, though the decree should be for possession of immovable property, is not equivalent to a transfer of property. In Gous Mahomed v. Khawas Ali Khan [1896] 23 Ca