JUDGMENT 1. This Appeal arises out of a suit brought under sec. 92, C. P. C. The Plaintiffs alleged that the Defendant had misappropriated certain property dedicated for the up-keep of two mosques, and made several allegations of misconduct against him. They prayed that the Defendant might be removed from the matwaliship and a new matwali might be appointed, that a scheme might be framed for the proper discharge of the trust and for various other reliefs. The suit has been pending for a considerable time and several different proceedings have been prosecuted in it. The present appeal is against the decision of the District Judge refusing to order a certain agreement to be recorded under Or. 23, r. 3, and to pass a decree in accordance therewith. The ground on which the learned District Judge has refused to record this compromise is that this suit under sec. 92 cannot be lawfully compromised in this way, and the compromise arrived at is not a lawful agreement within the terms of Or. 23, r. 3. 2. The Defendant appeals, and it is argued on his behalf that it is not shown that this is a public endowment at all, and that if it is not a public endowment, the suit can certainly be compromised ; secondly, it is argued that even if it is a public endowment, the Plaintiff can withdraw from the prosecution of the suit and the compromise does not amount to more than such a withdrawal. 3. It appears to me quite clear that if this be a public endowment, the suit cannot be compromised by this petition. The case of Gyanananda v. Kristo Chandra 8 C. W. N. 404 (1901) is in my opinion an authority for this view, and it appears to me to be in accordance with common sense. There is no reason whatever why the worshippers at this mosque, if it be a public mosque, and those who are interested in its management should be prejudiced, as undoubtedly they would be prejudiced by the stifling of this suit. And it is not in my opinion correct to say that the compromise itself is merely the withdrawal of the suit. The first Plaintiff agreed, according to the memorandum of agreement that has been placed before us, that the suit should be withdrawn for ample consideration. And it is not in my opinion correct to say that the compromise itself is merely the withdrawal of the suit. The first Plaintiff agreed, according to the memorandum of agreement that has been placed before us, that the suit should be withdrawn for ample consideration. Paragraph 5 of the memorandum relates to the withdrawal of the suit and the first two of the paragraphs show that the first Plaintiff was to receive a considerable advantage for this withdrawal. It was not therefore a mere withdrawal from the prosecution of the suit with which the Court of course could not interfere. It was an application formally to record a bargain under Or. 23, r. 3, the terms of which bargain could subsequently be used in evidence by the parties. I think, therefore, that if this be a public endowment, the order of the Judge below is perfectly right. 4. On the other point it has been argued that this question whether or not this is a public endowment was finally decided between the parties by decision of the District Judge so long ago as April 1910. That decision was passed in dealing with an application for the appointment of a Receiver and the Judge held that the deed operated to create a public endowment and that the suit was prima facie maintainable. He however rejected the application to appoint the Receiver, so that it would hardly seem that this decision was necessary for the disposal of that application. It has however been argued that ever since then the parties have acted on the view that this matter has been settled. I think for the purpose of the pending proceedings that this view is correct. The parties have ever since that decision apparently gone on the assumption that for the purpose of proceeding with this suit, the endowment must be regarded as a public endowment until the ultimate decision when the issue on this question will be finally determined. This is strongly indicated by the fact that in judgment under appeal there is no reference at all to any controversy on this point, and this Court on the 8th February 1912 in dealing with another interlocutory proceeding also seemed to have proceeded on the assumption that while this suit is pending, it must be regarded as one dealing with a public endowment. The Defendant cannot be prejudiced by this view being taken, for if hereafter it should be found, when the suit is formally tried, that this is not a public endowment, the suit will necessarily fail and he will in no way be injured but rather benefited by the fact that this compromise has not been allowed. On the other hand if this compromise is allowed, the persons interested in the mosque will be very considerably prejudiced, if the suit is disposed of on this compromise and the question whether or not it is a public mosque is not finally determined. The terms of Or. 23, r. 3 are that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement, the Court shall order the agreement to be recorded and pass a decree. The question whether this is or is not a lawful agreement depends on the further question whether this is or is not a public endowment, and so long as it remains subject to controversy whether this is a public endowment or not, it cannot in my opinion be said to be proved to the satisfaction of the Court, that the suit has been adjusted by a lawful agreement. 5. I think, therefore, that in the circumstances the decision of the Judge below is right and the appeal must be dismissed with costs. The hearing fee is assessed at five gold mohurs. The record will be sent down at once. Ray, J. I agree.