MAHENDER PERSHAD KAPOOR Vs. VIRENDER PURSUAD KAPOOR

JUDGEMENT

(1.) The appellant in the lower appellate Court is the appellant herein. During the pendency of the appeal, the appellant and the counsel made an endorsement on the memo of appeal that the appeal is not pressed. After some time before the Court passed the order on the said endorsement the application was filed for withdrawal and expunging the endorsement made in the appeal. This is resisted by the respondent. The lower appellate Court held that there was a prayer for dismissal without costs and there was no reference either to the adjustment or compromise and as such the question of expunging does not arise and in this view application was dismissed and consequently the appeal was dismissed as not pressed. Aggireved by this judgment and decree this appeal is filed.

(2.) The learned counsel for the appellant contends that the endorsement is pursuant to the alleged compromise between the appellant and respondent and as such the Court should have adjudicated the dispute regarding the same or whether the respondent resiled from such compromise. The learned counsel for the respondent seeking to sustain the judgment of the appellate Court contends that there is no adjustment or compromise and therefore Or.23, R.3, C.P.C., is not applicable.

(3.) Or.23, R.3, C.P.C., is as follows:- "Where it Is proved to the satisfaction of the Court that a suit has been adjusted wholly or In part by any lawful agreement or compromise (In writing and signed by the parties), or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as It relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction the same as the subject-matter of the suit) Provided that where It is alleged by one party and denied by the other that no adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment." Order 23, Rule 3 provides that the Court shall pass a decree in terms of the compromise or adjustment in writing and signed by the parties. In the event of allegation of compromise or adjustment and it is disputed by the other party the Court has to decide the question regarding the same. In the appeal the appellant and his advocate made a blanket endorsement that the appeal is not pressed without any reference to compromise or adjustment and there was no contemporaneous applicatio for passing a decree in terms of compromise This bare endorsement not accompanied by any agreement of compromise or adjustment does not come within the purview of Order 23, Rule 3. The bilateral agreement or understanding must be the forerunner for passing an order under the main limb of Order 21, Rule 3. The mere unilateral move of one of the parties not accompanied by prayer to pass a decree in terms of compromise is not contemplated by Order 23, Rule 3. The proviso is intended to meet the situation regarding the factum of compromise and it shall be decided by the Court. The appellant herein made a bare endorsement and the appellant can resile from such endorsement at any time before order is passed. The appellant moved the Court for ignoring the endorsement before the order is passed. If it is an endorsement without any reference to compromise the appellant can withdraw the same at any time before the order is passed. The situation is little complicated as the appellant filed an application to withdraw the endorsement on the ground that the compromise between him and the respondent fizzled out. The respondent denied any move for compromise. The main proviso in Order 23," Rule 3 does not apply because the alleged compromise is not reduced to writing and signed by the parties. Further, there is no application for passing a decree in terms of compromise and the absence of such application the question of attracting either the main or proviso of Order 23, Rule 3 does not arise. The reference to compromise in the affidavit in support of the application for impunging the endorsement cannot be considered as an application under Order 23, Rule 3 and therefore Order 23, Rule 3 is not attracted at all. This can be considered from another perspective. The appellant can be considered to have made the endorsement under the mistaken impression of settlement and Order 23, Rule 3 is not applicable to such situation also. When a party seeks to resilte from the endorsement of "not pressed" or withdrawal before the Court passes an order, the Court or the other side cannot insist that tne party should adhere to the earlier endorsement. This is a simple case of endorsement indicating that he is not pursuing the appeal and subsequently he destres to continue the appeal and requests for ignoring the endorsement of withdrawal and I see no reason why the Court should decline to ignore the endorsement.