PRAVINKUMAR MANILAL PANCHAL Vs. NAJMUJKHAN GULAM RASUL SHEIKH

JUDGEMENT

(1.) This Revision Application has been filed against the judgment and order dated 10th April, 2000 passed by the Joint District Judge, Panchmahals at Godhra.

(2.) Regular Civil Suit No. 75 of 1985 was pending between the parties in the court of the Civil Judge (J.D.), Santrampur. In that suit, compromise decree was passed on 30th March, 1999. The petitioner being defendant no. 8 in that suit, had engaged his counsel Mr. Dani who appeared and signed the compromise on behalf of the petitioner also. Accordingly, the compromise decree was passed on 30th March, 1999. The petitioner-defendant no. 8 filed an appeal against the said judgment and compromise decree alongwith the application to condone the delay of 160 days. The appellate court rejected the application for condonation of delay against which the petitioner-defendant no. 8 has filed the present revision application.

(3.) Heard the learned advocate for the petitioner and the learned advocate Mr. Y.M.Thakkar for the respondents and perused the relevant record. The application for condonation of delay has been reject ed mainly on two grounds that the petitioner had not explained the delay properly in his application in filing the appeal after the prescribed period. The other ground is that the appeal does not lie against the decree passed on consent terms/compromise arrived at between the parties. The court below has considered that section 96(3) of Civil Procedure Code provides no appeal where decree has been passed by the court below with consent of the parties. In case any fraud had been committed, then a separate suit is to be filed, but appeal does not lie against it. The lower appellate court relied on the decision of the Supreme Court in the case of Byram Pestonji Gariwala vs. Union Bank of India reported in AIR, 1991 SC, 2234 wherein it has been held that the words " in writing and signed by the parties" inserted in Order 23, Rule 3, Civil Procedure Code by the C.P.C.(Amendment) Act, 1976 necessarily mean and include duly authorised representative and counsel. Thus a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and in executable even if the compromise relates to matters concerning the parties, but ext ending beyond the subject mater of the suit. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn out right. A compromise decree creates an estoppel by judgment. Order 23, Rule 1 includes counsel and agent of party. Compromise decree signed by counsel and not by parties in person is binding, executable and operates as res judicata even if it extends beyond subject matter of suit. Counsel's power to enter into comprmise is not curtailed even impliedly, by Amending Act, 1976. It is binding on the client.