KANKUBEN PARSHOTTAMDAS JORDAS Vs. RAMRATANBHAI BADRIPRASAD AGRAWAL

JUDGEMENT

(1.) 1. Present Appeal from Order is filed by the appellants original defendant Nos. 2 and defendant Nos. 5 to 7 of Special Civil Suit No. 04 of 2002 challenging the order and decree passed by the learned Principal senior Civil Judge, Deesa dated 20th July, 2007 below Exhibit Nos. 623, 637, 626, 638, 645 and 635 in Special Civil Suit No. 04 of 2002.

(2.) MR. H. M. PARIKH, learned Advocate appearing on behalf of respondent Nos. 5 to 11 herein and defendant Nos. 14 and 15 has raised preliminary objection with respect to maintainability of present Appeal from Order under Order 43 Rule 1 of the C. P. C. As preliminary objection with respect to maintainability of present Appeal from Order is raised, this Court proposes to consider the same first.

(3.) FEW facts are necessary for the purpose of determination of maintainability of present Appeal from Order against impugned judgement, order and decree passed by the learned trial Court: respondent Nos. 1/1 to 1/6 herein - original plaintiffs instituted special Civil Suit No. 12 of 1983 (old) New No. 04 of 2002 in the Court of learned Principal Senior Civil Judge, Deesa against defendants for specific performance of agreement to sale / Sathakat dated 14. 12. 1981 and in the alternative to pay compensation/ damages of Rs. 30 lacs with 12% interest. Original plaintiffs prayed for permanent injunction in the said suit. That during the course of hearing of aforesaid Suit consent terms / compromise was submitted at Exh. 600 between the plaintiffs on one side and defendant Nos. 1/1 to 1/3 and defendant Nos. 2,5 to 7 on other side. Matter was ex-parte against defendant No. 3. Original defendant No. 4 has expired during trail and he has died leaving no heirs. As consent terms / comprise was only between the plaintiffs on one side and other defendant Nos. 1/1 to 1/3 and defendant Nos. 2, 5 to 7 on other side and there were other defendants i. e. defendant Nos. 8 to 15 on record who were not parties to the compromise at Exh. 600, the learned trial Court recored the compromise and decided to proceed with the trial against remaining defendants. Remaining defendant Nos. 8 to 15 submitted their written objections at Exh. 603 and the plaintiffs also submitted their counter reply to Exh. 603 vide Exh. 604. It appears that while the matter was kept for hearing of Exh. 603 and Exh. 604, defendant Nos. 2,6 and 7 vide their applications at Exh. 626 and 637 objected to consent terms / compromise which was submitted at Exh. 600 and the aforesaid defendants prayed not to pass decree pursuant to the said consent terms / compromise. It appears that after submission of aforesaid applications at Exh. 623, 626 another consent terms was arrived at between the plaintiffs and remaining defendants (Nos. 8 to 15) and the learned trial Court recorded the said compromise / consent terms at Exh. 634 and Exh. 635. Original plaintiffs submitted their reply vide Exh. 643 in response to Exh. 623 and Exh. 637 and submitted reply vide Exh. 644 in response to Exh. 626 and Exh. 638. Original plaintiffs submitted application at exh. 645 requesting the Court to pass decree on the basis of compromise at Exh. 600 and Exh. 635. All the aforesaid application below Exh. 623, exh. 637, Exh. 626, Exh. 638, Exh. 645 and Exh. 635 came to be heard jointly by the learned trial Court. As stated herein above, application exh. 623, 637, 626 and 638 were filed by defendant Nos. 5,2,6 and 7 who were parties to the earlier first consent terms / compromise submitted at Exh. 600 and who subsequently objected to the said compromise and consent terms and requested the Court not to pass decree on the basis of said consent terms / compromise. As stated above, second compromise was between the plaintiffs and remaining defendant Nos. 8 to 15 submitted at Exh. 634 and 635 and application at Exh. 645 was submitted by the original plaintiffs requesting the Court to pass decree on the basis of compromise at Exh. 600 and Exh. 635. That the learned trial Court passed the impugned judgment, order / decree as per consent terms at Exh. 600 and 635 allowing the plaintiffs application at Exh. 645 and dismissed the application submitted by defendant Nos. 5,2,6 and 7 i. e. application at Exh. 623, 637, 626 and 638 and thereby declared that sale deed at exh. 501, Exh. 503 and Exh. 505 are null and void as per compromise at exh. 600 and Exh. 635. The learned trial Court has also passed the decree for possession of suit fields handing over by defendant Nos. 8 to 15 to the plaintiffs and confirmed the same as decree of possession from defendant Nos. 1/1 to 1/3,2,5,6 and 7. The learned trial Court has also passed a decree for specific performance as prayed in Para 24 (1) of the plaint and directed the defendant Nos. 1/1 to 1/3, 2,5,6 and 7 to execute the sale deed of the lands mentioned in said relief para in favour of the plaintiffs or as per the names shown by plaintiffs on payment of remaining consideration by the plaintiffs as per Banakhat dated 14. 12. 1981. Being aggrieved and dissatisfied with the impugned judgment, order and decree dated 20th July, 2007, the appellants - original defendant Nos. 2,5 to 7 have preferred present Appeal from Order under Order XLIII Rule 1 and 1a of the Code of Civil Procedure.