S. ANANDA REDDY, J. ( 1 ) THIS appeal is at the instance of the defendants 16 and 17 aggrieved by the compromise decree that was passed in OS No. 135 of 1981 dated 13-6-1993, ( 2 ) THE 1st respondent herein, who is the widow of late Janardhanam, filed OS No. 135 of 1981 against her mother-in-law Surapaneni Veeramma, for partition of the suit schedule properties in two equal shares and for allotment of one such share to her. Pending the said partition suit, the defendants 2 to 6 came on record, as per the orders in IA No. 353 of 1982 dated 20th July, 1982; 7th Defendant also came on record as per the orders in IA No. 749 of 1981, dated 20-7-1982; 8th defendant, which is a trust came on record, as per the orders in IANo. 892 of 1982, dated 20th July, 1982. Defendants 9 to 12 are added as legal representatives of the deceased 5th defendant as per the orders dated 11. 7. 1984; 13th defendant came on record, as legal representative of the 1st defendant as per the orders in IA No. 569 1983, dated 25-2-1985; defendants 14 to 17 were impleaded as legal representatives of the 3rd defendant by order dated 27-12-1991. In the suit defendants 1, 3, and 5 died pendente lite and the defendants 8 to 12 and 14 to 17 remained ex parte. ( 3 ) A compromise memo was filed by the plaintiff and defendants 2, 6, 7 and 13. Further as per the said compromise memo, defendants 1, 8 to 12, 14 to 17 are given up. Consequently, a decree was passed in terms of the compromise memo, dividing the suit schedule properties between the plaintiff and the 13th defendant, who was the legal representative of the 1st defendant into two equal shares and allotting one share each to each of them. Items 28 to 38 and 40, which are covered by gift deeds in favour of the defendants 6 and 7 are excluded and the gifts in their favour were accepted. Though the 2nd defendant claimed the suit schedule property based on a Will and codicil dated 31-5-1981 alleged to have been executed by late Janardhanam, he admitted the same as not true and valid and do not confer any rights on the 2nd defendant. Though the 2nd defendant claimed the suit schedule property based on a Will and codicil dated 31-5-1981 alleged to have been executed by late Janardhanam, he admitted the same as not true and valid and do not confer any rights on the 2nd defendant. Items 1 and 12 of the B Schedule, movable properties were also ordered to be shared equally between the plaintiff and the 13th defendant. Further certain other movables were also ordered to be divided between the plaintiff and 13th defendant; 6th defendant and 7th defendant together 1/3rd share each. When the said compromise decree was passed by the Court below, the 16th and 17th defendants, who remained ex parte in the suit and who were also given up at the time of passing of the compromise decree, have come up with the present appeal. ( 4 ) IN fact, the record shows that the defendants 3 to 5, who are brothers, have come on record in the suit by getting themselves impleaded as defendants alleging that a Will dated 12. 6. 1981 was executed by late Janardhanam in their favour and therefore they are entitled to all the suit schedule properties. But the material on record shows that though they claimed the suit schedule properties basing on the Will, they remained ex pane. They do not produce any evidence, though a written statement was filed by defendant No. 3, which was adopted by defendants 4 and 5 and they did not even go into the witness box during the trial. But, however, the parties have entitled into a compromise at the arguments stage in the suit and the decree was passed in terms of the said compromise, where the plaintiff has given up the defendants 3 to 5 and their legal representatives, who were impleaded. ( 5 ) IN the present appeal, the learned Counsel for the appellants, who are defendants 16 and 17, contended that the compromise decree had resulted in passing two conflicting decrees - a partition decree in favour of the plaintiff and a dismissal of the suit insofar as the appellants are concerned. The learned Counsel contended that immediately after filing of the partition of the suit, an Advocate Receiver was appointed to take possession of the suit schedule properties and as the suit against these defendants was dismissed, to that extent they have succeeded in the suit. The learned Counsel contended that immediately after filing of the partition of the suit, an Advocate Receiver was appointed to take possession of the suit schedule properties and as the suit against these defendants was dismissed, to that extent they have succeeded in the suit. Therefore, as a successful party, they are entitled to get delivery of the properties from the Receiver. The learned Counsel also contended that the Receiver s possession in a suit is that of the successful party. These defendants are the successful parties in the suit and therefore the receiver is under an obligation to deliver the possession to these defendants. As such delivery was not effected by the Receiver, these defendants are aggrieved by the impugned order. The learned Counsel also contended that even under the provisions of Section 144, the defendants are entitled for restitution of possession of the properties in question, being the successful parties in the suit. The learned Counsel also contended that even assuming that Receiver took possession from other parties, even then such possession taken by the Receiver from third parties is also not relevant and the present appellants being the successful parties, they are entitled for delivery of the possession of the suit schedule properties. In support of his contention the learned Counsel relied upon the judgment of the Madras High Court in the case of Zamindar of Sannokhemedi v. Susilamala, AIR 1940 Mad. 850 . Alternatively, the learned Counsel also contended that even assuming that strictly the provisions of restitution would not apply, even then under the general principles of restitution the appellants are entitled for restitution of the properties in question. In support of his contention, the learned Counsel relied upon the decision of the Supreme Court in the case of Kavita Trehan v. Sahara Hygiene Products Ltd. , AIR 1995 SC 441 . The learned Counsel also relied upon a judgment of the Madras High Court in the case of Moidin Kutty v. Doraiswami, AIR 1952 Mad. 51 , in support of his contention. Accordingly, the learned Counsel sought for the relief claimed by the appellants herein. ( 6 ) THIS claim of the appellants is opposed by the defendants 6 and 7, who are the respondents 7 and 8 herein. 51 , in support of his contention. Accordingly, the learned Counsel sought for the relief claimed by the appellants herein. ( 6 ) THIS claim of the appellants is opposed by the defendants 6 and 7, who are the respondents 7 and 8 herein. Appearing for them, the learned senior Counsel Sri A. Venkata Ramana contended that insofar as his clients are concerned, their claim is based on two registered settlement deeds executed by late Janardhanam, husband of the plaintiff in the year 1955, long before the dispute arose between the parties. The said documents were also marked as Exhibits B5 and B6 in the suit. In fact, even the defendants 3 to 5, who filed the written statement have accepted about the execution of the said registered settlement deeds in favour of defendants 6 and 7. Therefore, there was absolutely no merit in the present claim of the present appellants, who remained ex pane and who also did not even go into the witness box to support their case. The learned Counsel contended that there is no bar in effecting compromise in between some of the parties, having given up the claim with reference to the rest of the parties. In support of his contention, the learned Counsel relied upon the following decisions: m/s. Hulas Rai v. KB. Bass and Co. , AIR 1968 SC 111 ; A. Appalaswamy v. M. Anjaneyulu, AIR 1974 AP 268 ; Shankar Bharati v. Narasimha Bharati, AIR 1927 PC 57. The learned Counsel contended that under the compromise the lands covered by the above registered settlement deeds were excluded from the partition and as the defendants are not claiming any right over the above items, there is absolutely no jurisdiction in seeking to set aside the compromise decree. ( 7 ) THE learned Counsel Sri T. Veerabadraiah, appearing for the legal representatives of the 1st respondent/plaintiff contended that insofar as the present appellants are concerned, the plaintiff did not sought for any relief. They came on record on their volition, claiming the suit schedule properties basing on a Will propounded by them. Though a written statement was filed by the 3rd defendant, which was adopted by the defendants 4 and 5, they did not come into witness box to depose in support of the Will propounded by them. They came on record on their volition, claiming the suit schedule properties basing on a Will propounded by them. Though a written statement was filed by the 3rd defendant, which was adopted by the defendants 4 and 5, they did not come into witness box to depose in support of the Will propounded by them. It is contended that the present appellants are two of the legal heirs of the 3rd defendant. Even when they were brought on record, they remained ex parte and they did not make any claim to the suit schedule property and in fact the plaintiff also did not sought for any relief against the defendants. Therefore, these defendants were given up and thereafter a compromise decree was passed among the other parties for the suit. Therefore, there is absolutely no legal right to the present appellants, who were given up in the suit to have any grievance. The compromise decree that was passed is not binding at all on the present appellants, as these appellants were given up in the suit. If they are entitled to any relief with reference to the suit schedule properties, it is always open for them to take appropriate legal proceedings. Therefore, they are not entitled to any relief. The learned Counsel also contended that there is absolutely no conflict in the decrees that were passed, as contended by the appellants. In the suit, the plaintiff has given up these defendants, who were in fact remained ex parte. Therefore, they are not entitled to any relief. It is not a case where there was a contest between the parties and ultimately the suit was decreed or dismissed, so that the parties to such proceedings are entitled to the consequential relief. The learned Counsel also contended that under Order XXIII, Rule 1 CPC, the plaintiff has got liberty to give up or abandon the claim against any of the parties to the suit and therefore, such abandonment could not be considered as a decree in favour of such defendants to seek restitution or any other relief under such order or decree. Therefore, it is contended by the learned Counsel that there is absolutely no merit in the present appeal. Therefore, it is contended by the learned Counsel that there is absolutely no merit in the present appeal. ( 8 ) THE learned Counsel Sri Chandra Shekar Rao, appearing for the respondents 3 and 14, who are the defendants 2 and 13, contended that the present appeal filed under Order XLIII, Rule 1 A (2) of CPC is not maintainable, after the omission of clause (m) of Rule 1 of Order XLIII. According to the learned Counsel an appeal under Order XLIII is not maintainable, though an appeal can be filed under Section 96 CPC. In support of his contention the learned Counsel relied upon a decision of the Bombay High Court in the case of Deorao v. Devkinandan, AIR 1984 Bom. a 474, and the decision of the Supreme Court in the case of Banwari Lal v. Chando Devi, AIR 1993 SC 1139 . ( 9 ) FROM the above rival contentions the issue to be considered in this appeal is whether there are any conflicting decrees, as a result of the compromise decree passed by the lower Court and whether the appellants are entitled to the relief of restitution either under Section 144 or under General Provisions of Restitution. ( 10 ) AS already stated earlier, the facts are not in dispute. The present appellants, who are the defendants 16 and 17 are two of the legal heirs of the 3rd defendant. The 3rd defendant along with defendants 4 and 5 got themselves impleaded in the suit, claiming that they are entitled for the suit schedule properties, basing on a Will, alleged to have been executed by the plaintiff s husband, late Janardhanam, It is also not in dispute that though the 3rd defendant filed a written statement, which was adopted by the defendants 4 and 5, they did not enter into the witness box to prove the Will, which was propounded by them and thereafter remained ex parte. After the death of the 3rd defendant, his legal representatives were brought on record as defendants 14 to 17, who also remained ex parte. In fact, the trial of the suit was completed, but only at the time of arguments, a compromise was entered into between the plaintiff and defendants 2, 6, 7 and 13, 13th defendant being the legal representative of the 1st defendant. In fact, the trial of the suit was completed, but only at the time of arguments, a compromise was entered into between the plaintiff and defendants 2, 6, 7 and 13, 13th defendant being the legal representative of the 1st defendant. The plaintiff has given up the other defendants to the suit and accordingly a compromise decree was passed. ( 11 ) NOW the grievance of the present appellants, who are defendants 16 and 17 in the suit, is that the effect of the compromise decree and the dismissal of the suit against them had resulted in conflicting decrees. As the suit was dismissed against these defendants, there is decree in their favour and consequently they are entitled for restitution of the suit schedule property in their favour. The said argument is based on the judgment of the Madras high Court in the case of Zamindar of sannokhemedi v. Susilamala (supra ). The facts of that case are that the plaintiff filed the suit for possession of the estate of the husband of the 1st respondent in the subordinate Judge s Court, where a decree was passed in his favour on 20th December, 1992. The defendant appealed to the High court. In the appeal a Receiver was appointed, who took charge of the estate in April, 1923. The defendant died in 1925 and his widow came on record, who was impleaded as respondent in the appeal. On 31-3-1928 the High Court reversed the trial Court s decree. The plaintiff preferred an appeal to the Privy Council and asked that the Receiver should continue in possession of the estate. But this prayer was refused and the widow obtained possession from the Receiver. On 1 st November, 1932, the Privy Council, set aside the decree of the High Court and restored the decree of the Subordinate Judge. Immediately after this decree was passed, the respondent No. 1 herself appointed as Receiver, pending receipt of the fonnal order in Council and the appellant got possession in March, 1933. The plaintiff claims restitution in the shape of profits in the estate for the period from april, 1929, when the respondent took possession from the Receiver to December, 1932, when she was herself appointed as receiver. . The profits of the estate after allowing the ordinary charges amounted to rs. 1,30,000/- for the said period. The plaintiff claims restitution in the shape of profits in the estate for the period from april, 1929, when the respondent took possession from the Receiver to December, 1932, when she was herself appointed as receiver. . The profits of the estate after allowing the ordinary charges amounted to rs. 1,30,000/- for the said period. The respondent No. l contended that there could be no order for restitution in the circumstances of the case and consequently she was entitled to appropriate the profits to the amount due to her and the High court s order whereby the Receiver was directed to pay to each party monthly maintenance of Rs. 1,500/ -. She also claims that she is entitled to set off against the surplus arrears of this maintenance. The learned Subordinate Judge, before whom the application was filed, allowed the same in part. The plaintiff not satisfied with the relief granted, carried the matter in appeal before the Madras High Court. The said appeal was heard by a Division Bench of the Madras High Court and as there was a difference of opinion, it was referred to the third Judge. After considering elaborately various arguments, the Court concluded that the point of time for determining a right to restitution is not the inception of the proceedings resulting in the wrong decree, but the point of time immediately before the wrong decree. This is clear from the words "place the parties in the position which they would have occupied by for such decree". They are not to be placed in the position, which they occupied at the beginning of the litigation, but in the position which they occupied just before the wrong decree was passed. When once it is conceded, as I think it must be, that the possession of the receiver at the time when the High Court s decree was passed, was the possession of the plaintiff who ultimately succeeded before the Privy Council, it does not seem to me to matter that the plaintiff did not get possession after the trial Court s decree or that the defendant continued in possession up to the time of the appointment of the Receiver. The important question is, who was in possession before the wrong decree was passed. The important question is, who was in possession before the wrong decree was passed. The answer to that question is that the Receiver was in possession on behalf of the person, who would ultimately be found entitled, that is to say on behalf of the plaintiff. The Receiver surrendered possession to the respondent No. 1 not because he had taken possession from the original defendant, but because respondent No. l had been declared entitled by the erroneous decree. It follows therefore, that his possession, which was constructively the possession of the plaintiff, terminated and the defendant got possession directly in consequence of the erroneous decree of the High Court, reversing the trial Court s decree. It seems to me, therefore, that Section 144 applies in terms and that the plaintiff is entitled to claim restitution of any profits realised by the defendant s legal representative which can be called properly consequential upon the wrong decree, unless the defendant s legal representative is entitled to resist the claim either by showing that she has a superior claim to those profits or by showing that the plaintiffs came is barred by reason of the failure to establish his right to future profits in the trial Court. Holding so, the appeal was allowed. ( 12 ) COMING to the decision of the Supreme Court in the case of Kavita Trehan v. Balsara Hygiene Products Ltd. (supra), the Apex Court after considering the provisions of Section 144 and the rights of the parties for restitution held "section 144, CPC, incorporates only a part of the general law of restitution. It is not exhaustive. The jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words "where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose. . . " The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every Court. . . " The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every Court. ( 13 ) THE learned Counsel also relied upon a judgment of the Madras High Court in the case of Moidin Kutty v. Doraiswami (supra) in support of his contention that the Receiver acting under the authority of the Court as a statutory representative of the real owner and he will hold the properties during the proceedings on behalf of the successful party in the proceedings. As according to him, the suit was dismissed against the present appellants, a decree in their favour is to be construed and if so constructed these defendants are entitled for delivery of possession from the Receiver as successful party even without reference to the previous possession either of these defendants or otherwise. ( 14 ) COMING to the decisions referred and relied upon by the Counsel for the Respondents 7 and 8, the first decision is in the case of M/s. Hulas Rai v. K. B. Bass and Co. (supra ). In this case the Apex Court considered the issue as to the right of the plaintiff in a suit for rendition of accounts by the principal against the agent to withdraw before passing of a preliminary decree. The Apex Court referred to the view of the Madras High Court in the case of Seethai Achi v. Meyappa, AIR 1934 Mad. 337 , which was relied upon by the appellant, where it was held "ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. In suits for partition, if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour ofthe defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some relief in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit. " after referring to the above, the Apex Court held. "we do not think, as urged by the learned Counsel, that the learned Judges of the Madras High Court were lying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiffs withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such a right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstances mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties. In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit. " ( 15 ) IN the case of Shankar Bharati v. Narasimha Bharati (supra) the Privy Council considered the scope of the compromise decree passed between some of the parties. In that case the plaintiff filed the suit in the Subordinate Court of Belgaum claiming the office of Jagadguru or head of the Sankeshwar and Karvir Mutt, an ancient foundation having two branches, one at Sankeshwar in the Belgaum District of the bombay Presidency and the other in the native State of Kolhapur, During the pendency of the suit, the 2nd defendant was impleaded on the ground that the 1st defendant appointed him as his successor. During the pendency of the suit, interrogatories were issued by the plaintiff to the I st defendant as to the appointment of the 2nd defendant as his successor. Thereafter, there was a compromise between the plaintiff and the 2nd defendant with reference to the office of Jagadguru. Though the 1st defendant continued to be on record the said compromise was only between the plaintiff and the 2nd defendant. The 1 st defendant then presented a petition for review of the compromise decree on the ground that the said compromise was obtained without any notice to the 1st defendant. The Subordinate Judge dismissed the said petition for review observing that not being a party to the decree, the 1st defendant could not be bound by it and could not be aggrieved by the said decree, which was not binding on him. Then the 1st defendant carried the matter in appeal. The High Court after calling for certain findings on issues referred to the Court below, allowed the application. On further appeal, the Privy Council allowed the appeal observing that the 1st defendant admittedly transferred all his rights in the office to the second defendant, in whom they were still vested at the date of the compromise decree, which established the plaintiffs right to the office and its properties in British India. In their Lordships opinion the fact that the first defendant continued on the record did not entitle him to intervene in the contest between the plaintiff and the second defendant, or to object to the admission by the second defendant of the plaintiffs claim to the office and its endowments either absolutely or on terms. If the rights of the public institution or its dependants, including the first defendant, are injuriously affected by the compromise, relief may be sought by appropriate proceedings, but the first defendant has no right of appeal in this suit. ( 16 ) IN the case of A. Appalaswamy v. M. Anjaneyulu (supra) a Division Bench of this Court considered the scope of Order XXIII, Rule 1 in respect of a suit for dissolution of partnership and accounts. In this case, the plaintiff filed a suit against five defendants for dissolution of a partnership and settlement of accounts. Issues were framed and plaintiff was also examined as PW1. In this case, the plaintiff filed a suit against five defendants for dissolution of a partnership and settlement of accounts. Issues were framed and plaintiff was also examined as PW1. At that stage, the plaintiff and defendants 1, 3, 4 and 5 arrived at a compromise and the plaintiff desires to give up his case against defendant 2. The plaintiff, therefore, filed IA No. 1007 of 1969 for recording compromise between the parties excluding the 2nd defendant. The 2nd defendant filed IA No. 1025 of 1969 under Order 1, Rule 10 CPC, requesting the Court to transpose him as 2nd plaintiff and transpose the plaintiff as the 6th defendant. Another application was filed by the 1st defendant in IA No. 1026 of 1969 requesting the Court to dismiss the suit according to the terms of the compromise and direct the 2nd defendant to institute a suit to enforce his right if any. The trial Court dismissed the 2nd defendant s application, while allowing the other two applications. Specifically, however, the Court did not say that the suit of the plaintiff is dismissed as against the 2nd defendant as he was given up by the plaintiff. Aggrieved by the same, the 2nd defendant preferred an appeal to the Sub-Court, which allowed the appeal and directed the trial Court to proceed with it and allowed the 2nd defendant to lead evidence even if the plaintiff does not want to proceed with the case. This conclusion was based on the assumption that in a suit for dissolution of partnership all the partners stand in the position to the plaintiff and each one of them can proceed with the suit as he is ultimately entitled to a decree in case he is found entitled to it. The said order of the Sub-Court was assailed in a revision. When the said matter came up before a Division Bench of this Court, this Court while allowing the revision, held that the plaintiff is entitled to withdraw his suit on his own, unless the plaintiff desires to file a fresh suit in respect of the same subject-matter or part of it and held as under:"in other cases, the plaintiff is free to either withdraw the suit or abandon part of his claim as against all or any of the defendants. It is only in pursuance of this provision of law that the plaintiff abandoned the suit as against the 2nd defendant. It did not require any permission of the Court to dismiss the suit as abandoned against the 2nd defendant. Even in regard to other defendants, although a compromise memo was filed, there was nothing in the terms of compromise which required a decree to be passed by the trial Court. In fact the application of the 1st defendant was that the suit should be dismissed in terms of the compromise. The recording of compromise would not alter the position that what was desired by the plaintiff was to withdraw his suit without the leave of the Court to institute a fresh suit as against at the defendants excluding the 2nd defendant because as against him, the plaintiff had already abandoned his claim. In any case, the compromise admittedly did not come under Order XXIII, Rule 3 CPC, but it came only under Order XXIII, Rule 1 CPC. It is fairly clear that a withdrawal under sub-rule (1) may be in any form; where the plaintiff enters into a compromise with the defendants but does not communicate the terms of compromise to the Court, he is held to have withdrawn his suit under sub-rule (1 ). Similarly, where a suit is dismissed at the request of the parties on a memo of compromise filed, the dismissal operates as a withdrawal of the suit under sub-rule (1 ). The result therefore was that although the trial Court had not specifically stated that the suit of the plaintiff would be dismissed in terms of the compromise even as against all the defendants other than the 2nd defcadant, it will be deemed to have been so dismissed. In that view of the matter, it was really unnecessary for the 2nd defendant to go in appeal. " ( 17 ) COMING to the decisions relied upon by the learned Counsel for the respondents 3 and 14 regarding the maintainability of the appeal, in the case of Deorao v. Devkinandan (supra) a single Judge of the Bombay High Court considered the issues regarding the maintainability of an appeal under Order XLIII, Rule 1-A (2) of CPC. " ( 17 ) COMING to the decisions relied upon by the learned Counsel for the respondents 3 and 14 regarding the maintainability of the appeal, in the case of Deorao v. Devkinandan (supra) a single Judge of the Bombay High Court considered the issues regarding the maintainability of an appeal under Order XLIII, Rule 1-A (2) of CPC. As per the said decision after deletion of clause (m) of Rule 1 of Order XLIII, no appeal lies under Order XLIII, On the other hand an appeal is maintainable only under Section 96 (1) CPC. ( 18 ) TO the same effect is the decision of the Apex Court in the case of Banwari Lal v. Chando Devi (supra ). In this case the Apex Court considered the scope as to the maintainability of an appeal against a compromise decree passed in a suit. The Apex Court also held that an appeal lies under Section 96 (1) and no appeal lies under Order XLIII, Rule 1-A of the Code. ( 19 ) IN the present appeal the grievance of the appellants is that the compromise decree passed in the suit had resulted in two inconsistent decrees. According to the appellants, a compromise partition decree was passed between the plaintiff and defendants 2, 6, 7 and 13, whereas with reference to the other defendants the suit was dismissed, which implies a decree in their favour. According to the learned Counsel, as the suit against the defendants, who are not parties to the compromise, was dismissed including the present appellants and as there is a decree in their favour, as a result of the dismissal of the suit against them, they are entitled for restitution of possession of the suit schedule property to them by virtue of the provisions of Section 144 CPC. As already referred, strong reliance was placed on the decision of the Madras High Court in the case of zamindar of Sannokhemedi v. Susilamala (supra ). The facts in that case are totally different. The dispute was between the plaintiff and the defendant and ultimately the ratio in that case was that the parties must be placed in the position where they were before the wrong decree was passed, which was ultimately set aside or modified. The facts in that case are totally different. The dispute was between the plaintiff and the defendant and ultimately the ratio in that case was that the parties must be placed in the position where they were before the wrong decree was passed, which was ultimately set aside or modified. In the present case, admittedly, the plaintiff filed the suit for partition impleading only the 1st defendant and sought for a decree for partition of the suit schedule properties between the plaintiff and the 1st defendant. The plaintiff did not sought for any relief against the other defendants. But, however, the other defendants themselves got impleaded and in fact their claim is not to share a part of the property as co-sharers, but they claimed that they are entitled to the suit schedule properties under the Will Deed set up by the defendants 3 to 5. Though the trial of the suit was complete, the defendants 3 to 5, except filing written statement, did not go into the witness box to lead evidence in support of their claim with reference to the Will propounded by them. In fact, they remained exparte. Subsequently, during the pendency of the suit as some of them died, their legal representatives are brought on record including the present appellants. Even the said legal representatives also remained ex parte and did not contest the suit. Under the above circumstances there was a compromise between the plaintiff and defendants 2, 6, 7 and 13, 13th defendant being the legal representative of the 1st defendant. After passing of such compromise decree, the present appellants, who are defendants 16 and 17, who remained exparte in the suit, have come up with the present appeal. In fact, a perusal of the compromise decree shows that these appellants along with other defendants 1, 8 to 12, 14 and 15 are given up by the plaintiff. As contended by the learned Counsel for the 1st respondent/plaintiff that the plaintiff has got a right to give up her claim against any of the parties under Order XXIII, Rule 1 and even permission of the Court is not required as long as the plaintiff does not reserve the right to institute a fresh suit. When the plaintiff has given up some of the defendants in the suit, there is absolutely no grievance for the defendants, who are given up in the suit. When the plaintiff has given up some of the defendants in the suit, there is absolutely no grievance for the defendants, who are given up in the suit. They are not bound by the compromise decree that was passed in the suit. If the defendants, who are given up, have got any right over the suit schedule properties or have got any other right, it is always open for them to take appropriate legal proceedings either to secure or to protect their interest. In fact, the material on record clearly shows that the plaintiff never sought for any relief against any of the defendants, except the 1 st defendant. The defendants 3 to 5 in the suit came on record on their own, setting up a Will and claiming the suit schedule properties, which they did not pursue by leading any evidence and that they remained ex parte in the suit. Even the legal heirs of the 3rd defendant, some of whom are the present appellants also remained exparte in the suit. Therefore, the plaintiff has given up those defendants and a compromise decree was passed with reference to the other parties. As claimed by the present appellants, there is no dismissal of the suit as found in the compromise decree. As per the terms of the compromise decree, the defendants are given up by the plaintiff. Therefore, there is no inconsistency as contended by the learned Counsel for the appellants. ( 20 ) THOUGH the learned Counsel contended that a Receiver was appointed immediately after filing of the suit for partition and a Receiver was appointed, who took possession of the properties from the defendants, but no such evidence was placed before the Court showing that the Receiver had taken possession of the suit schedule properties from the predecessor of the appellants. In the absence of any such evidence, there is absolutely no merit in the present claim of the appellants. As rightly claimed by the Counsel for the respondents 7 and 8, the properties that are allotted to them are covered by registered settlement deeds. Exs. B5 and B6, which was executed on 29-4-1955, 25-5-1955 respectively by late Janardhanam during his life time settling certain of the items of the suit schedule properties in their favour. This fact was also even admitted by the 3rd defendant in his written statement. Exs. B5 and B6, which was executed on 29-4-1955, 25-5-1955 respectively by late Janardhanam during his life time settling certain of the items of the suit schedule properties in their favour. This fact was also even admitted by the 3rd defendant in his written statement. Thereafter, there is no merit in the contention of the learned Counsel for the appellants. ( 21 ) COMING to the contention raised by the learned Counsel Sri M. Chandra Shekhar Rao, appearing for the respondents 3 and 14 as to the maintainability of the present appeal, the said contention was advanced by the learned Counsel after the arguments of both sides are concluded. Tough the judgments relied upon by the learned Counsel as to the maintainability of the present civil miscellaneous appeal is well founded, but still an appeal lies only to this Court. Therefore, I do not want to reject the appeal on that ground. ( 22 ) UNDER the above circumstances, the appeal is devoid of merits and the same is accordingly dismissed. No costs.