DUNI CHAND Vs. SHIV LAL

JUDGEMENT

(1.) THIS is an appeal against a judgment of the District Judge, Jammu, by which in an appeal from a judgment and decree of the Sub -Judge, Udhampur, the decree of the trial Court was modified in terms of the compromise deed, filed by the parties before the District Judge on the 7th of January, 1956.

(2.) WE have heard arguments of the learned counsel for the parties. In the memorandum of appeal two points were taken. The first point was that Nityanand, appellant, son of Duni Chand, appellant, had not given the power of attorney to L. Dina Nath, Advocate, to compromise the case. This point, however, was not pressed by the learned counsel for the appellants. The second point taken was that the compromise also related to a matter which was not in dispute in the present case and, therefore, the compromise was invalid and could not be recorded. This was the only point that was pressed before us on behalf of the appellant. We have gone through the record. A decree of possession for the shop in dispute specified in the plaint was passed in favour of the plaintiff against the defendants by the trial Court. The compromise deed besides dealing with this property and saying that the appellants shall have no right or interest in the property in dispute also stated that the respondents shall also be the owner of the remaining contiguous property. The terms of the compromise deed in so far as those related to property other than the suit property could not be incorporated in the operative part of the decree, vide O. 23, R. 3, Civil Procedure Code, and N. 19 of Chitaleys Civil Procedure Code, 1953 Edn. at p. 2790, where a compromise comprises matters unconnected with the suit, the proper course for the Court is to recite the compromise as a whole in its decree or in the form of a schedule to the decree for purposes of reference but to restrict the operative part of the decree to those terms of the compromise which relate to the suit The learned counsel for the respondents has no objection if we modify the decree of the lower appellate Court in the manner indicated in this quotation from N. 19 referred to above. We, therefore, modify the decree of the lower appellate Court to the extent that the words in the compromise deed dated 7th January, 1956, viz., that the plaintiff shall be the owner of the remaining property that is not suit property will not form part of the decree. The appeal is accepted to this extent and the parties are left to bear their own costs so far this appeal is concerned.