QADRI JAHAN BEGAM Vs. FAZAL AHMAD

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of a dower debt brought by Mt. Qadri Jahan Begam against her husband Sheikh Fazal Ahmad. The suit was dismissed by the Court below on the ground that it was not proved that any part of the dower debt was prompt and accordingly the suit was premature. An appeal was preferred by the wife and was pending in this Court. Apparently some registered document was executed purporting to be a compromise we are not concerned with its terms here) on the basis of which an application was made to the Subordinate Judge signed by both the parties to this appeal, to the effect that they had agreed that the suit should be dismissed without any further adjudication and that the parties were to bear their own costs. A request was made to the Court below that "the said application for compromise after due verification be forwarded to the High Court so that the appeal may be dismissed in terms of it." The learned Subordinate Judge deputed his munsarim to get this application for compromise verified by the lady. This was done. He accordingly forwarded it together with the verification and his report. Before any decree could be passed in terms of it the counsel for the appellant intimated that the appellant was dead, and asked for time to bring her heirs on the record. An application for substitution of names was filed, which was ultimately granted by a learned Judge of this Court, and the original appellant's father and mother were brought on the record in her place in the array of the appellants. The learned Judge at the time of passing this order did not, however, decide whether they were not bound by any compromise which had been entered into by their predecessor.

(2.) The learned Counsel for the respondent has taken a preliminary objection that the present heirs are not entitled to continue this appeal. His first contention is that the application in substance was one for the withdrawal of the appeal and did not amount to an adjustment or a compromise. We cannot accept this contention. The application which was filed in the Court of the Subordinate Judge did not purport to be an application to withdraw the appeal. On the other hand, it expressly mentioned that there was a compromise between the parties under which the appeal was to be dismissed and the parties were to bear their own costs. The case therefore undoubtedly falls not under Order 23, Rule 1 but under Rule 3 of that order. Before a decree can be passed in terms of this compromise it is to be proved to the satisfaction of this Court that the appeal has been adjusted wholly or in part by a lawful agreement or compromise between the parties. The learned advocate for the respondent argues that inasmuch as the compromise signed by the lady is duly verified, it must be assumed that it was a lawful compromise. We are of opinion that the adjustment of the appeal is something distinct and independent from the compromise being a lawful one. The execution of the application for compromise and its due verification before an officer appointed by the Court below is a proof that the appeal had been adjusted wholly by the parties. That however does not necessarily show that the adjustment was necessarily lawful.

(3.) Order 23, Rule 3, does not merely say that the agreement or compromise should be binding on the parties. It speaks of its being "lawful." The rule is imperative and it would be the duty of the Court to order such agreement or compromise to be recorded unless it finds that the compromise is not lawful.