BALWANT SINGH Vs. BALDEV RAJ SINGH

JUDGEMENT

(1.) The plaintiff-appellants filed a suit for the dissolution of the partnership and the rendition of accounts on 12.12.1965. On 22.12.1966, the trial Court held that the partnership stood dissolved and passed a preliminary decree for rendition of accounts and appointed a Commissioner to look into the accounts and submits his report. on 20.4.1967 the Commissioner submitted his report to which the plaintiff-appellants filed objections on 24.4.1967. Their objections prevailed and on 18.11.1971 the trial Court set aside the report of the Commissioner. On 26.11.1971 parties along with their counsel appeared before the trial Court and made statements on solemn affirmation, which were duly recorded by the Court and were got signed from the parties and their respective counsel and on that very day the Court passed the following order :

(2.) The defendants primarily urged two points before the lower appellate Court : (1) that the trial Court having not passed an order to the effect that the compromise be recorded, the compromise recorded in this case stood vitiated as, in doing so, the provisions of Order 23, rule 3 of the Code of Civil Procedure, which are mandatory were not complied with, and (2) that the decree passed as a result of the compromise could not have been passed as the same did not relate to the suit, for in a suit for dissolution of partnership and rendition of accounts a final decree for possession of the premises described in the partnership deed could not have been legally passed.

(3.) The lower appellate Court relying on Paban Sardar V. Bhupendra Nath Nag, 1917 AIR(Cal) 607 Srimati Sabitri Thakurain V. F. Savi and others, 1927 AIR(Pat) 354 (Babu) Sheonandan Prasad Singh and others V. Hakim Abdul Fateh Mohammad Reza and another, 1935 AIR(PC) 119; and Messrs Silver Screen Enterprises V. Devki Nandan Nagpal, 1970 72 PunLR 583 (a decision of the Supreme Court); held that the trial Court having not recorded a formal order to the effect that the compromise be recorded, the compromise and the decree based thereon were illegal as these were passed in violation of the provisions of Order 23, rule 3 of the Code of Civil Procedure. The lower appellate Court distinguished, on facts, a Single Bench decision of this Court reported in Johri Mal alias Johri V. Sukhan Lal and others,1966 PunLR 733, stating that in this case, both the parties had made a joint statement on solemn affirmation that the compromise had been recorded as mentioned in their statement and the statement recorded in the Court was signed by the parties and their counsel and immediately thereafter, the Court recorded the order that the parties having made statement in Court and compromised their case, the suit is decreed in terms thereof. The learned lower appellate Court also observed that Pandit J., who decided this case, had neither doubted the correctness of law as laid down in Shrimati Sabitri Thakurdain's case and Padan Sardar's case nor had he held that the provision of Order 23, rule 3 of the Code of Civil Procedure were not mandatory.