BARENDRA BISWAL Vs. RAMA ROY AND ORS.

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner challenging the judgment dated 28 -12 -2010 passed by the learned Civil Judge (Senior Division). Balasaore in C.M.A. No. 209 of 2008 -I arising out of C.S. No. 238 of 2004 -I rejecting an application filed under Order 23, Rule 3 -A of C.P.C. to set aside the consent judgment and decree dated 11 -5 -2004 respectively passed in the suit. The brief facts of the case are that opposite party No. 1 as plaintiff filed C.S. No. 238 of 2004 -I before the learned Civil Judge (Senior Division), Balasaore for declaration of right, title, interest and to declare that Registered Sale Deed No. 8926 dated 29 -12 -2003 is illegal and inoperative. In the plaint it was pleaded that though the petitioner -defendant promised to pay the consideration amount of Rs. 7,23,215/ - to the plaintiff immediately after 15 days of the registration of Sale Deed, he avoided to pay the same. The possession of the suit land has not been delivered and the original sale deed was to be handed over to the defendant after full payment of the total consideration amount.

(2.) THOUGH the suit was posted for office note on 1 -5 -2004, the same was put up in advance on 16 -4 -2004 on which date the suit was admitted and notice was issued to the defendant fixing the date of appearance on 1 -7 -2004. However, on 11 -5 -2004 the matter was put up on the basis of advance petition. An Advocate purportedly appeared on behalf of the petitioner and compromise was recorded by the Court below on the basis of a compromise petition filed by both the parties. A decree to that effect was also passed on 16 -5 -2004.

(3.) WHILE matter stood thus, opposite party No. 2 proposed the petitioner to hand over all the documents including the original sale deed dated 29 -12 -2003 along with the written and unwritten signed papers to him so that he will take steps to mutate the land in the name of the petitioner. The petitioner had no occasion to disagree to the said proposal and he handed over all the documents, sale deed, written and unwritten papers along with Vakalatnama to opposite party No. 2 in presence of opposite party No. 1 keeping xerox copies of the same with him. He paid Rs. 25,000/ - towards the expenses of mutation case. Thereafter, the petitioner left Balasaore in the 1st week of April, 2004.