MT. SURJUBAI Vs. MOROPANT

JUDGEMENT

(1.) THE respondent Moropant alleging that the appellants had encroached on his land sued for possession of a small plot in the town of Wardha. On the 29th July 1926 the pleaders for the parties stated that the claim had been compromised in a particular manner, and the Judge took down their statements regarding the terms of the compromise. The parties desired that the judgment should not be delivered until certain terms had been carried out and time was, therefore, given for this purpose. When this period had elapsed, defendants said that they were under some misapprehension when they came to the agreement and desired to resile from the agreement. The Judge passed an order rejecting this Application. He then delivered a 'judgment," the substance of which is that the parties have compromised the case in terms which appear in statements recorded on the 29th July 1926 and that a decree will be passed in accordance with these terms.

(2.) I shall deal subsequently with the points pressed in the first appeal. Before me for the first time it is urged that as the trial Court has not recorded the agreement in the manner required by Order 23, Rule 3, Civil P.C., the decree of the first Court must be set aside. Reliance is placed on Paban Sardar v. Bhupendra Nath Nag [1915] 43 Cal. 85. In that case there was a 'judgment" which contained the words: The rejection of the application of the 4th May 1912 makes the application of the 25 April inoperative.

(3.) WITH due respect to the learned Judges who decided that case, I state my opinion that they were under a misapprehension regarding the meaning of Order 23, Rule 3. That rule directs the Court to order, a compromise to be recorded and to pass a decree in accordance therewith. The order then takes the place of a judgment. The rule does not state that the terms of the compromise must be set out in the order. The order must contain words showing that a compromise in terms indicated with sufficient clearness is accepted by the Court as a valid basis for a decree. Now the application, dated the 25th April 1912, consented to by the defendant, was clearly a compromise. A statement that it was operative is surely equivalent to an order that it should be recorded as a valid basis for the decision of the suit. The "judgment" could be attacked in appeal.