THANARAM BHATI Vs. D ANNAMALAI CHETTIAR

JUDGEMENT

(1.) I A VI is filed for recalling of the order dated 27-6-2002 where under RFA 182/99 came to be disposed of by a considered judgement dismissing the appeal. The suit relates to relief for specific performance of the sale and delivery of suit schedule property. The appellant before this Court is the defendant in the suit. The plaintiffs suit for specific performance has been decreed as prayed for. The appeal filed by the defendant is dismissed by this Court. Now under I A 6, an application is filed for recall of the order passed in the judgment dated 27-6-2002 and permit the parties to report the compromise.

(2.) IN the application it is contended that the judgement in the appeal is passed without hearing the appellant. The said submission is incorrect Para-4 of the judgement in clear terms indicate that both the Counsel for the appellant and he respondent were heard. Therefore, the judgement is passed on merits.

(3.) AFTER disposal of the appeal, the Court has become functus officio. Therefore, entertaining an application to recall the order and to modify the decree in terms of compromise is an imper-missible procedure adopted. It is not uncommon to find that after final disposal of the suit or other proceedings by a decree or final order, the parties may enter into a compromise which may be contrary to the terms of decree/order. In such a situation, the provision of Rule 2 of Order 21 envisage recording of the compromise by the executing court and to record the satisfaction of the decree in terms of the compromise and finally give quietus to the litigation between the parties in terms of the compromise. For convenient reference, the provisions of Rule 2 of Order 21 CPC is extracted here under: 2. Payment out of Court to decree holder (1) Where any money payable under a decree of any kind is paid out of Court, or the decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgement debtor or any person who has become surety for the judgement debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree- holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly