SHIV NATHI Vs. RAJ DEO AND ORS.

JUDGEMENT

(1.) BY means of this writ petition, the petitioner has sought relief of quashing the judgment and order dated 27.10.1988 (Annexure -7 to the writ petition) passed by the District Judge, Allahabad.

(2.) THE respondent No. 1 filed a suit in the Court of Civil Judge, Allahabad against Pachai, the father of the petitioner, the petitioner, her mother Smt. Kaushalya and respondent Nos. 2 to 4 for specific performance of contract on the basis of agreement to sell said to have been executed in her favour by Pachat. The aforesaid suit was contested by Pachal and other defendants. The execution of agreement to sell was denied. The trial court dismissed the suit but the appeal filed by respondent No. 1 was allowed by the lower appellate court. Against the judgment and decree passed by lower appellate court, the petitioner and the respondent Nos. 2 to 4 and the mother of petitioner Smt. Kaushalya filed second appeal before this Court which was registered as Second Appeal No. 165 of 1979. The appeal was admitted and the execution of the decree passed by the learned District Judge was stayed. It appears that Pachai, father of the petitioner died and now the petitioner and her mother Smt. Kaushalya who is a divorced lady remained as successor to Pachai. It is said that the interest of the petitioner and her mother Smt. Kaushalya was being looked after by the respondent Nos. 2 and 3 of the present writ petition who are the first cousins of the petitioner. It has been pleaded that the respondent Nos. 1 and 4 taking advantage of situation filed a compromise in Second Appeal No. 165 of 1979 which was signed by the respondent Nos. 1 and 3. The said compromise, was not signed by the petitioner and her mother Smt. Kaushalya. By the said compromise, it was agreed that the suit of respondent No. 1 be decreed for plot No. 157 to the extent of 2/3rd while remaining 1/3rd of the plot shall remain in possession of respondent Nos. 2 and 3. It was further agreed that the suit with regard to plot No. 812/1180 shall stand dismissed and the respondent No. 4 shall remain owner thereof. Some further terms were incorporated in the said compromise. The said compromise as was filed before this Court was sent for verification to the learned District Judge. It appears that in the Court below after noting the verification, the file was sent back to this Court, upon which, by the judgment and decree dated 4.8.1981, the second appeal was decided in terms of compromise, copy of the compromise application and the judgment of this Court dated 4.8.1981 has been annexed as Annexures -1 and 2 to this writ petition. In the meantime, after the death of Smt. Kaushalya, the petitioner succeeded to her Interest also. When the compromise decree was put in execution by the respondent, it is said that on receipt of notice from the executing court, the petitioner came to know about the compromise decree upon which, she moved an application under Section 151. C.P.C. for recalling the compromise decree on the ground that same has not been signed by her, or her mother Smt. Kaushalya and, therefore, the appeal could not have been decided in terms of compromise so far as their shares are concerned. On that application, the stamp reporter made a report that as the application amounts to review of the judgment and decree, the petitioner is liable to pay court fee on the valuation of the appeal which came as Rs. 4,000. Although the petitioner filed objection against that report, but this Court did not agree with the petitioner's contention and by order dated 5.11.1985, directed the petitioner to pay the court fee. As the petitioner did not pay the required court fee, the petitioner's application was dismissed by the order dated 13.3.1987 (Annexure -4 to the writ petition). In the execution proceedings which was going on before the executing court, the petitioner raised a plea that as neither she nor her mother, was the signatory to the compromise, it is not binding on them and the compromise decree cannot be executed against their interest. The executing court rejected the petitioner's application mainly on the ground that the executing court cannot go behind the decree. Against the order dated 20.9.1988 (Annexure -6 to the writ petition), a revision was filed by the petitioner which was also dismissed by order dated 27.10.1988 which has been impugned in this petition.

(3.) IT has been submitted by learned counsel for the petitioner that there is no dispute about the fact that neither the petitioner nor her mother Smt. Kaushalya were the signatory to the compromise and, therefore, on the basis of the said compromise, the appeal could not have been finally decided affecting their interest. It has been further argued that although application moved by the petitioner for recalling of the order as was passed by this Court finally deciding the appeal fn terms of compromise, was rejected but as the petitioner and her mother was not party to that compromise and they were not signatory. In no case, the decree can be executed against their interest. Learned counsel for the petitioner has brought to my notice the provisions as contained in Order XXIII, Rule 3, Code of Civil Procedure which is being quoted below :