FONDO SHIVRAM DESSAI Vs. MAHENDRA SHIVRAM N DESSA

JUDGEMENT

(1.) THE petitioners (defendants Nos. 1 and 2 and defendants Nos. 5 and 6 in the suit) had filed an application on 5-11-1992 under Order 23, Rule 3, C. P. C. in which it was prayed that this suit may be decreed in terms of compromise/agreement dated 23-4-1988. This application was dismissed by impugned order dated 16th September, 1993 by Civil Judge, Senior Division, Margao and it is this order which is challenged in revision.

(2.) LEARNED Advocate Shri M. P. Almeida took me through the contents of the said compromise/agreement and submitted that the same is a concluded agreement and nothing more remained to be done by the parties; that whatever was left to be done under the said compromise/agreement could be subject-matter of execution; that the said compromise/agreement is not opposed by the opposite party on grounds of undue influence, fraud or plea of like nature; that the execution of the said compromise/agreement has not been denied by the parties and that in a suit for partition whatever was required to be done was done under the said compromise/agreement and nothing remained to be done any further. Relying upon a number of judgments of the Bombay High Court in (Keshav s/o Dattram v. Yamunabai w/o Nagoba) 1986 (1) Bom. C. R. 81, (Union Bank of India v. Shri Byram Pestonji Gariwala and others) 1991 (1) Bom. C. R. 575, (R. V. Kulkarni v. Messrs. La Builde Corporation and others) 1994 (4) Bom. C. R. 46 and (Ratanchandra and another v. Mrs. Suruchi Chand and others) 1995 A. I. H. C. 191, it was contended by learned Advocate Mario Almeida that the trial Judge had erred in not allowing the application in question and that the impugned order be set aside and necessary orders be passed under Order 23, Rule 3, C. P. C.

(3.) ON the other hand, Advocate Shri Nitin Sardessai has objected to the grant of relief sought by the petitioners on the ground that it is apparent from the terms of the said compromise/agreement that it was not a concluded agreement and that many things had remained to be done including draft consent terms. According to Shri Sardessai, the said compromise/agreement was merely a guideline which the parties had agreed for the settlement of the matter in pursuance of which the final terms were still to be agreed. He took me through letter dated 18-10-1988 which further gives an indication that the said compromise/agreement was not a final document, but that certain things had to be done and since the same were not done, the respondents had repudiated the said agreement. He also dwelt on the question of conduct of parties and submitted that the conduct of parties gives a clear indication that the said compromise/agreement was not intended to be acted upon by the parties. He, therefore, submits that the revision is liable to be dismissed.