UMIASHANKAR NARANJI PANDIA Vs. SHIVSHANKAR PRABHASHANKAR BHATT

JUDGEMENT

(1.) The appellants were the defendants in a suit in which the plaintiff, the owner of a house, claimed certain rights of easement over the adjoining property of the defendants and a permanent injunction restraining the defendants from obstructing him in the enjoyment of those rights. Defendant No. 1 is the father of defendants Nos. 2 and 3, defendant No. 3 being a minor whose guardian ad litem was defendant No. 1.

(2.) The case was first decided ex parte after which it was restored to the file and set down for hearing in July, 1940. On July 30, 1940, the plaintiff and defendant No. 1 arrived at an agreement, exhibit 128, and the parties in a joint application stated that the plaintiff had agreed to purchase the house of the defendants and that the suit was to be settled on a registered document being passed. Time being asked for, the Court adjourned the case from time to time. The agreement stated that the suit was adjusted by the parties having agreed that the house was to be sold to the plaintiff for Rs. 5,750 for which a registered document was to be passed by the defendants within fifteen days, to which document the signatures of the parties as well as those of defendant No. 1's brother and sister were to be obtained. It was further provided that an application for disposal of the suit was to be given after the document was registered. It appears that a sale-deed was got written on August 8, 1940, and on August 9, 1940, defendant No. 1 applied to the Court stating this fact and also that all the defendants had signed it and that his sister Parvati was also willing to sign the document on the plaintiff's paying the price at the Sub-Registrar's office. The defendant served a notice on the plaintiff on August 15, 1940, again stating that his sister Bai Parvati was willing to sign the sale-deed. Thereafter defendant No. 1 applied to the Court by an application, exhibit 101, on August 20, 1940, stating that the suit was adjusted as the document had been written in accordance with the agreement and that the defendants had done all that was necessary to implement the said agreement, and he asked the Court to pass an order striking off the suit. The pleader for the plaintiff put in his objections stating that the suit had not been compromised, that the sale- deed had not yet been signed by Bai Patvati and that therefore the compromise had fallen through. The application was set down for hearing, and the plaintiff thereupon required the defendants to execute a supplementary document incorporating certain matters which had not appeared in the sale-deed. Thereafter Bai Parvati signed the sale-deed, exhibit 139, and defendant No. 1 got it registered in the absence of the plaintiff on September 14, 1940. The price still remained to be paid by the plaintiff. The matter was heard on March 24, 1941, wherein the main contentions that were urged for the plaintiff were : (1) that the agreement, exhibit 128, was about a matter which was wholly foreign to the subject-matter in suit and therefore it was not a lawful agreement; (2) that the defendants had committed a breach of the agreement, the whole of the sale-deed not having been written in the presence of the plaintiff and his pleader; and (3) that so far as the rights of the minor, defendant No. 3, were concerned, defendant No. 1 had not obtained the Court's permission for entering into the compromise in his behalf as required by Order XXXII, Rule 7. All these objections were overruled and the Court held that there was an adjustment of the suit by lawful agreement as evidenced by exhibits 128 and 139 and that therefore the suit was to be dismissed. On the same day a decree was passed in the following words : Suit is declared to be adjusted as per order below Exhibit 101. Hence the suit stands dismissed as stated therein.

(3.) The plaintiff appealed to the District Court against the order made on exhibit No. 101, and the defendants raised a preliminary objection that the appeal against the order did not lie as the plaintiff-appellant should have appealed against the decree dismissing the suit. The Court held that an appeal lay against the said order, that the agreement, exhibit 128, was lawful but that the order dismissing the suit passed below exhibit 101 was not legal. The main grounds on which the last conclusion was based were that there had been neither an application nor an order that the agreement was to be recorded, that the agreement was one about the sale of the defendants house which, in the opinion of the learned Judge, " was not the subject-matter of the suit," that therefore the agreement could not be recorded under Order XXIII, Rule 3, and that the order dismissing the suit was without jurisdiction. Accordingly, the appellate Court set aside the order on exhibit 101 along with the decree passed in pursuance thereof and remanded the suit to the trial Court for being proceeded with from the stage where it had been left. The defendants have appealed. Their main contention is the same as was advanced in the lower appellate Court, viz. that no appeal lay against the order made on exhibit 101, and that if any appeal lay at all, it should have been against the decree in which the said order has merged.