NIRMALA ARVIND MARCHANT Vs. MANOHAR VISHWESHWAR KULKARNI

JUDGEMENT

(1.) THE original plaintiff's (present Respondent Nos. 1 and 2) had filed a suit in the Bombay City Civil Court being S. C, Suit no. 3506 of 1965 as against one Arvind R. Marchant for a decree for possession of a bungalow and also for a decree and order to remove certain alleged unauthorised structure situated on the suit land and for certain other decrees for arrears of compensation, mesne profits, etc. During the pendency of the suit the said defendant died. The present appellants and respondent No. 3 are the heirs and legal representatives of the deceased -defendant. It appears that after these heirs and legal representatives were brought on record the parties arrived at consent terms on April 25, 1978. The consent terms were signed by the plaintiff and his advocate and as also defendant No. 1-B (present respondent No. 3) and the advocate for the defendants. The other defendants did not sign the consent terms. A decree was passed in terms of the consent terms.

(2.) IT appears when the plaintiff applied for execution of the said decree as per the consent terms, got a notice issued under Order 21, Rule 22 of the Code of Civil Procedure. Thereupon the present appellants took out a notice of motion, dated August 9, 1984 bearing No. 3875 of 1984 for setting aside the said consent decree, dated April 25, 1978. The learned judge by his order, dated January 8, 1985 dismissed the said notice of motion. The present appeal is against this order of dismissal of the said notice of motion.

(3.) IN support of their case, the appellants have pleaded that they have not signed the consent terms, and that they were not aware of the consent terms, and that defendant No. 1-B (present respondent No. 3) had no authority to sign the consent terms and also the advocate for the defendants had no authority to sign the consent terms on bahalf of the defendants. They contended that since they had not signed the consent terms, the decree was not binding upon them and that, therefore, the decree cannot be executed as against these defendants.