SUKHDEO MISSIR Vs. KAMLESHWARI PRASAD SINGH

JUDGEMENT

(1.) This appeal is against an order of a Subordinate Judge of Monghyr, refusing to record a compromise under Order 23, Rule 3, Civil P.C. The suit was for recovery of Rs. 8,299 odd on the basis of a registered mortgage bond said to have been executed by defendants 1 to 7, defendants 8 to 12 being the minor sons of defendants 3 and 4. Defendants 1 to 4 filed a petition, alleging that the suit was adjusted out of Court, the plaintiff having agreed to take a sale of half of the mortgaged properties in satisfaction of the entire mortgage debt. They prayed for the recording of the compromise. The plaintiff denied this agreement. The learned Subordinate Judge without holding any enquiry as to the truth or otherwise of the defendants allegation has rejected their petition. He seems to be of opinion that as no sale deed was executed by the defendants, there was no adjustment of the suit and no enquiry was necessary, In my opinion, the learned Subordinate Judge is obviously in error. His view will lead to the proposition that a contract is not a contract unless it is performed. If it is true that there was a lawful agreement between the parties to adjust the suit in a particular way, namely that the defendants would execute a sale deed in favour of the plaintiff in respect of half the mortgaged properties and that the plaintiff would accept it in satisfaction of his debt, the suit was adjusted and the defendants were entitled to have an inquiry whether there was such an agreement. A promise to do a certain thing is a good consideration for a promise by the other party to do certain other things. A promise by the defendants to execute a sale deed was therefore a good consideration for the plaintiff's promise to have the suit decided in a particular way, and as long as the defendants were ready and willing to perform their part of the promise, namely to execute a sale deed, they can hold the plaintiff bound to his own promise.

(2.) The order of the learned Subordinate Judge is set aside. The case is remanded to him. He will hold an enquiry as contemplated by Order 23, Rule 3, Civil P.C., and then dispose of the case according to law. Costs of this appeal will abide the result. Saunders, J.

(3.) I agree.