MUDDANA VENKATESWARLU Vs. MUDDANA BASAVIAH

JUDGEMENT

(1.) Pending two suits brought by the respondent against the petitioner for recovery of small extents of land, 5 cents in one case and 16 cents in the other, the parties agreed in the presence of mediators that if the defendant should take an oath in the plots in dispute that the properties in the suits belong to him, the plaintiff should give up his claim to the disputed property and the suits should be dismissed. This agreement was embodied in Exhibit A-1. It is inter alia recited therein that in the event of the agreement being given effect to, the defendant should pay the costs of the suits to the plaintiff and that the parties should file a memo, of compromise into Court on the basis of which decrees should be passed. It appears that the defendant took the oath on the said lands and fixed stones as per the compromise but the respondent resiled from it and refused to sign the memo, of compromise adjusting the claim to be filed into Court as envisaged by Exhibit A-1. It is under these circumstances that the petttioner-defendant filed applications under Order 23, rule 3, Civil Procedure Code, requesting the Court to record the compromise. These petitions were resisted by the plaintiff whose main objection was that, the agreement did not evidence the terms really agreed to between the parties, that the agreement was that if oath should be taken by the defendant the plaintiff would give up his claim to 3 cents of land and not to 16 cents of land forming the subject matter of O.S. No. 164 of 1954 and that he affixed his thumb impression to Exhibit A-1 not knowing the contents thereof.

(2.) The trial Court nagatived the opposition of the plaintiff, allowed the petitions and directed that compromise should be recorded as prayed for. The plaintiff carried two appeals to the Subordinate Judge, Narasaraopet. The Subordinate Judge while agreeing with the District Munsif that the appellant-plaintiff was a party to Exhibit A-1 with full knowledge of its contents, reversed the decision of the trial Court in the view that Exhibit A-1 contemplated a fresh consent by both the parties by preparing a compromise petition and submitting it to the Court to enable a decree to be passed and that since that did not happen the terms of Order 23, rule 3, Civil Procedure Code were not attracted to this case. In the result, he allowed the appeals and dismissed the petitions for recording compromise. It is this order of the Subordinate Judge that is under revision now.

(3.) The only question that arises for consideration in these petitions is, whether the agreement Exhibit A-1 could form the basis of an order under Order 23, rule 3, Civil Procedure Code. It is indisputable that Exhibit A-1 envisaged the filing of a compromise petition to which both the plaintiff and the defendant should be the consenting parties. Incontrovertibly, immediately after the oath was taken, the plaintiff went back upon the agreement and refused to sign the compromise petition. That being the position, the instant case cannot be brought within the operation of Order 23, rule 3, Civil Procedure Code. It is now well settled that to constitute an adjustment the agreement or the compromise must itself be capable of being embodied in a decree. An agreement providing for entering into a compromise on certain terms cannot be regarded as a compromise or adjustment within the scope of Order 23, rule 3, Civil Procedure Code.