UMIASHANKAR NARANJI PANDIA Vs. SHIVSHANKAR PRABHASHANKAR BHATT

JUDGEMENT

(1.) THE appellants were the defendants in a suit in which the plaintiff, the owner of a house, claimed certain rights of easement over the adjoining property of the defendants and a permanent injunction restraining the defendants from obstructing him in the enjoyment of those rights. Defendant No.1 is the father of defendants Nos. 2 and 3, defendant No.3 being a minor whose guardian ad litem was defendant No.1.

(2.) THE case was first decided ex parte after which it was restored to the file and set down for hearing in July, 1940. On July 30, 1940, the plaintiff and defendant No.1 arrived at an agreement, exhibit 128, and the parties in a joint application stated that the plaintiff had agreed to purchase the house of the defendants and that the suit was to be settled on a registered document being passed. Time being asked for, the Court adjourned the case from time to time. THE agreement stated that the suit was adjusted by the parties having agreed that the house was to be sold to the plaintiff for Rs. 5,750 for which a registered document was to be passed by the defendants within fifteen days, to which document the signatures of the parties as well as those of defendant No.1's brother and sister were to be obtained. It was further provided that an application for disposal of the suit was to be given after the document was registered. It appears that a sale-deed was got written on August 8, 1940, and on August 9, 1940, defendant No.1 applied to the Court stating this fact and also that all the defendants had signed it and that his sister Parvati was also willing to sign the document on the plaintiff's paying the price at the Sub-Registrar's office. THE defendant served a notice on the plaintiff on August 15, 1940, again stating that his sister Bai Parvati was willing to sign the sale-deed. THEreafter defendant No.1 applied to the Court by an application, exhibit 101, on August 20, 1940, stating that the suit was adjusted as the document had been written in accordance with the agreement and that the defendants had done all that was necessary to implement the said agreement, and he asked the Court to pass an order striking off the suit. THE pleader for the plaintiff put in his objections stating that the suit had not been compromised, that the sale-deed had not yet been signed by Bai Patvati and that therefore the compromise had fallen through. THE application was set down for hearing, and the plaintiff thereupon required the defendants to execute a supplementary document incorporating certain matters which had not appeared in the sale-deed. THEreafter Bai Parvati signed the sale-deed, exhibit 139, and defendant No.1 got it registered in the absence of the plaintiff on September 14, 1940. THE price still remained to be paid by the plaintiff. THE matter was heard on March 24, 1941, wherein the main contentions that were urged for the plaintiff were : (1) that the agreement, exhibit 128, was about a matter which was wholly foreign to the subject-matter in suit and therefore it was not a lawful agreement; (2) that the defendants had committed a breach of the agreement, the whole of the sale-deed not having been written in the presence of the plaintiff and his pleader; and (3) that so far as the rights of the minor, defendant No.3, were concerned, defendant No.1 had not obtained the Court's permission for entering into the compromise in his behalf as required by Order XXXII, Rule 7 . All these objections were overruled and the Court held that there was an adjustment of the suit by lawful agreement as evidenced by exhibits 128 and 139 and that therefore the suit was to be dismissed. On the same day a decree was passed in the following words : Suit is declared to be adjusted as per order below Exhibit 101. Hence the suit stands dismissed as stated therein.

(3.) MR. Shah in the course of his argument admitted that the decree in this case would be covered by the provision of Section 96(3) of the Civil Procedure Code, viz. that no appeal lies from a decree passed by the Court with the consent of parties. In this case the trial Court has found it proved that there was an adjustment of the suit by lawful agreement as evidenced by exhibits 128 and 139, and the lower appellate Court has also found that the agreement was lawful., In Ramalinga v. Ramaswamy (1929) A.I.R. Mad. 696 it was held that the expression "decree passed by the Court with the consent of the parties" in Section 96 is not limited to the decree passed with the consent expressed at the moment the decree is passed but includes decrees based on consent proved to have been out of Court though subsequently withdrawn or repudiated before the Court. The wording of Order XXIII, Rule 3, makes it quite clear that where the Court finds it proved that there has been an adjustment of the suit by a lawful agreement, two things are obligatory on the Court: (1) to order such agreement to be recorded and (2) to pass a decree in accordance therewith so far as it relates to the suit. The decree follows the order, and must be treated as one made on the basis that there has been a valid agreement, proved to amount to an adjustment of the suit, i.e. as "a decree passed by the Court with the consent of parties", within the meaning of Section 96(3) of the Civil Procedure Code. If MR. Shah is right in his contention that there can be no appeal against the order under Order XXIII, Rule 3, the party who is aggrieved by such order or the decree passed thereunder will evidently have no remedy; available to him at all by way of appeal. It seems to me that such could not be the intention of the Legislature. It was thought in Onkar Bhagwan v. Gamna Lakhaji & Co. that it would be open to the aggrieved party to apply for review or to make an application under Section 151 of the Code. But where the decree has been passed by consent of the parties, it is difficult to see how any application for review or any application under Section 151 could be maintained.