SHIV NATHI Vs. RAJ DEO

JUDGEMENT

(1.) S. K. Singh, J. By means of this writ petition, the petitioners 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 respondents No. 2 to 4 for specific performance of contract on the basis of agreement to sale said to have been executed in her favour by Pachai. THE aforesaid suit was contested by Pachai and other defendants. THE execution of agreement to sale was denied. THE trial Court dismissed the suit but the appeal filed by respondent No. 1 was allowed that the lower appellate Court. Against the judgment and decree passed by lower appellate Court, the petitioner and the respondents No. 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 respondents No. 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 Appeal No. 165 of 1979 which was signed by the respondents No. 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 for the extent of 2/3rd while remaining 1/3rd of the plot shall remain in possession of respondents No. 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 the 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.) BY referring the aforesaid provisions, the learned Counsel has laid emphasis on the word "in writing and signed by the parties". As the compromise admittedly do not bear the signature as pleaded by the petitioner and, therefore, it has been argued that the suit could not have been finally terminated on the basis of the aforesaid compromise and in the alternative, it cannot bind the petitioner making it executable against her/their interest. The decree not being in consonance with the provisions of Order XXIII, Rule 3 C. P. C. , it cannot be said to be a valid decree. Learned Counsel for the petitioner in support of aforesaid contention has cited decision as reported in Kandhe and othersv. Jhanjan Lal and others,air 1936 All. page 1 and Anadi Krishna Duttav. Priya Sankar Mujumdar and others,air 1916 Cal. 479.