INDIRA DEY Vs. ANUKUL CHANDRA CHATTERJEE

JUDGEMENT

(1.) THIS is an application filed by the defendant-petitioner recalling the order of this Hon'ble Court dated 2nd April, 1985 passed on he application for compromise filed in C. R. No. 3737 of 1979 alleging inter that the said compromise was a nullity, inasmuch as, the Court without being satisfied about the existence of a ground of ejectment as alleged in the ectment suit out of which the said Civil Rule' arose, allowed the said compromise petition.

(2.) THE learned Counsel for the defendant-petitioner contends inter alia, at it is well-settled that if the compromise of an ejectment suit is effected by court without being satisfied about the existence of a ground of ejectment contained in the Act, under which the said suit was filed, and/or if in the did compromise petition there is no admission of any of such ground, any compromise decree passed on such compromise petition is a nullity and connote by given effect to and refers to several decisions, namely, 86 CWN 739 responding to 1982 (1) CHN 410; AIR 1970 S. C. 838; AIR 1970 S. C. 794; 61 (1) SCR 591corresponding to AIR 1961 S. C. 27. 2; AIR 1973 Cal 322 AIR 78 S. C. 952. The learned Advocate further contends that even if the earlier application for recalling of such compromise petition was rejected, the sequent application will not be hit by the principle of resjudicata if the promise decree itself is a nullity, and refers to the decision of the Supreme court in 1990 (1) S. C. C. 193.

(3.) THE learned Advocate for the plaintiff-opposite party, however, contend that since the defendant-petitioner subsequent to the order passed on the compromise petition filed an undertaking to this Court to vacate the suit premises and partly complied with the said undertaking in giving up posses sion of the first floor of the suit premises in favour of the plaintiff-opposite party, the defendant- petitioner is estopped for challenging the compromise decree any more and the principle of at least constructive resjudicata with apply to the facts and circumstances of the case and refers to the decision the Supreme Court in AIR 1979 S. C. 1436.