K C DEVEGOWDA Vs. K T SOMAIAH

JUDGEMENT

(1.) This is a Miscellaneous First Appeal by defendant-2 against the order passed by the Civil Judge, Chickmagalur in O.S.No.11 of 1966 rejecting the application, I.A.No.XI, filed by defendant-2 for recording the compromise entered into between the plaintiff and defendant-2.

(2.) Respondent-1 who is the plaintiff brought a suit for specific performance of the agreement and in the alternative to recover a sum of Rs.55,000. On the 16th ot September, 1969, defendant-2 filed an application, I.A.No.XI, under Order 23, Rule 3 C.P.C. praying that the compromise entered into between defendant-2 and the plaintiff on the 10th September 1969 be recorded and a decree be drawn in terms thereof. The alleged compromise which has been produced by defendant-2 in this case has been marked as Ext.D-1. The plaintiff while admitting his signature on Ext.D-1, denied its execution. He contended that his signature was taken on the document by practising fraud and misrepresentation. He also took the stand that the application filed by defendant-2 cannot be allowed as there is no adjustment of the suit by the alleged agreement, Ext.D-1. The learned Civil Judge after considering the evidence placed by the parties came to the conclusion that the plaintiff has failed to establish that his signature was taken on Ex.D.1 by practising fraud and misrepresentation as alleged by him. The case of defendant-2 was that compromise talks took place on the 9th of September 1969 and that the terms agreed upon were reduced into writing and Ex. D. 1. was executed on the 10th of September 1969. The learned Civil Judge came to the conclusion that defendant-2 has failed to prove that the alleged compromise talks took place on the 9th of September 1969. He therefore came to the conclusion that the alleged compromise recorded as per Ex. D. 1 is not lawful. Consequently, he rejected the application, I.A.XI, filed by defendant-2 and reiused to record the alleged compromise evidenced by Ex.D.1.

(3.) It is the correctness of the order passed by the learned Civil Judge on I.A.No.XI, that is challenged by defendant-2 in this Miscellaneous Second Appeal.