1. The defendant has taken out this notice of motion to record a compromise on the terms contained in the letter of his attorneys dated January 13, 1937, and praying that a decree may be passed in favour of the plaintiff in terms of the said compromise. The first contention urged by' the plaintiff is that the procedure adopted is incorrect. Relying on the decision in Manilal Motilal v. Gokaldas Rowji I.L.R. (1920) Bom. 245 : 22 Bom. L.R. 1048 the plaintiff urges that the only right of the defendant is to put in a supplemental written statement, pleading by way of defence the compromise propounded by him. He further relies on High Court Rule 150 which enables a defendant to file a supplemental written statement in respect of matters which arose after his first pleading, constituting his defence to the action, was filed.
2. In my opinion the plaintiff's contention is not correct. Order XXIII, Rule 3, of the Civil Procedure Code, allows a compromise to be proved but lays down no procedure showing the manner in which it can be done. It however lays down that on a compromise being proved the Court shall pass a decree in terms thereof. Further, the decision of the Court recording or refusing to record the compromise, is liable to appeal under Order XLIII, Rule 1, although the decree which a Court may pass on the compromise is called a consent decree. The decision in Manilal Motilal v. Gokaldas Rowji principally deals with the question whether a reference to arbitration in a pending suit, made without an order of the Court, followed by an award, can be enforced or not. The decision was that it could not be enforced as an award either under the Civil Procedure Code or the Indian Arbitration Act but on the analogy of a compromise between the parties may be recorded under Order XXIII, Rule 3. The procedure to be adopted in cases of that type (as Macleod C.J. in his judgment expressly stated), viz. the enforcement of a compromise contained in an award made in pursuance of a submission to arbitration in a pending suit without the intervention of the Court, may be as stated in that judgment. If the plaintiff wanted to enforce it, he was to take out a motion and if the defendant wanted to enforce it, against an unwilling plaintiff, he could plead it by a supplemental written statement. Without stating definitely if in matters of that kind the parties were prevented from taking any other procedure, if it was allowed to them in law, I do not think it is necessary to consider that aspect on the present motion because the compromise propounded in the present case is not an award made under those circumstances. Fawcett J. in the course of his judgment on this point evidently yielded to the opinion of the learned Chief Justice and stated so in express terms. In his judgment Fawcett J. stated that the English law of procedure appeared to be the same and for that purpose relied on a statement in Halsbury's Laws of England, Vol. XXIII, p. 167, foot-note (h). With all respect it appears that the learned Judge overlooked the fact that the statement contained in that foot-note was based on a decision of 1820, i.e. before the Judicature Act. At p. 168 of the same volume, in considering the practice and procedure on the same point, it is stated as follows :-
If there is a default in the carrying out of the terms of the compromise by the plaintiff or the defendant, the agreement for the compromise, if it has not been made a rule of Court, and if it relates only to the proceedings in the action, may be enforced by an application in the action.
The statement of law in Daniel's Chancery Practice is also in similar terms. In Rultonsey Lalji v. Pooribai I.L.R. (1883) Bom. 304 Scott J. had occasion to consider the procedure in enforcing a compromise under Section 375 of the Civil Procedure Code of 1882. The learned Judge stated as follows (p. 308):-
The outcome of the various [English] cases I have consulted is that 'a simple agreement between the parties for the compromise of the suit can be enforced by interlocutory application in the existing cause; but when the agreement goes beyond the subject-matter of the suit the remedy is by bill for specific performance.'
3. It is not disputed that under the English law it is now open to1 both parties to enforce a compromise by a motion. I am, therefore, unable to accept the contention that the observations in Manilal v. Gokaldas have taken away the right of the defendant to move the Court to record a compromise on a motion in this suit. The decision in Ruttonsey v. Pooribai does not appear to have been noticed in Manilal v. Gokaldas and I am unable to treat that decision as overruled as regards the procedure mentioned therein. No reason is stated in Manilal v. Gokaldas for the compromise being recorded by a particular procedure except that it was necessary under the Original Side High Court Rules to have the suit on board for passing the decree, which must follow on the compromise being recorded. In the present suit the defendant has asked the Prothonotary to put the suit on board and in fact it is on the daily trial board as required by High Court Rule 266 which runs as under :
266. No decree in a suit save as provided in Rule 374 shall be passed unless the suit appears on the daily trial board.
4. Under the circumstances there appears to be no objection to proceed to dispose of the motion and pass a decree in terms of the compromise, if proved. The contention that Rule 150 enables the defendant to put in a supplemental written statement in respect of the further defence is general in terms and is not confined to the defence of a compromise under Order XXIII, Rule 3. The rule so worded generally is, in my opinion, not sufficient to take away the right which exists in the defendant, otherwise to move the Court to record a compromise. I am unable, therefore, to concede that as a sufficient ground to uphold the plaintiff's contention.
5. The result is that Order XXIII, Rule 3, enables the Court to try the question whether a compromise propounded by one side and disputed by the other took place or not, and if it came to the conclusion that the compromise was arrived at, the Court was obliged to pass a decree in terms of that compromise. No specific provision in the Civil Procedure Code or the High Court Rules is pointed out which prevents a defendant from taking out a notice of motion to achieve that object. In the absence of any rule or specific authority to the contrary, and following the English practice in that respect, I think it is permissible to the defendant to take out a notice of motion as he has done.
6. The plaintiff's contention in that respect must, therefore, fail.