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Gulabchand Ramsukh Vs. Ramsukh Rampratap - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Appeal from Order No. 34 of 1923
Judge
Reported inAIR1926Bom39; (1925)27BOMLR1279
AppellantGulabchand Ramsukh
RespondentRamsukh Rampratap
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1008), section 96(3), order xxiii, rule 3, order xliii, rule 1 - compromise-decree by consen.-appeal from the decree.;no appeal lies under section 96(3) of the civil procedure code, from a con-bent decree passed in terms of a compromise signed by bath parties.;if one of the parties complains that a lawful agreement has not leon arrived at, it is open to him to urge the objection before the decree in passed it is not competent to him to treat the decree as an order passed under order xxiii, rule 3, of the civil procedure code, and to appeal from it under order xliii, rule 1, clause (m). - - they clearly show that the suits were not adjusted by a lawful agreement......proved to the satisfaction of the court that the three suits were adjusted wholly or in part by a lawful agreement) or compromise. (3) under order xxiii. rule 3 of the civil procedure code, the court has be satisfy itself by positive proof that there has been a lawful agreement to adjust the suit before ordering the agreement to be recorded. in the present case the court passed the order without any inquiry, or proof on this point. (1) the said compromise was brought about by the appellant a pleader mr. juwekar with undue haste, without mature deliberation, and without giving the appellant sufficient time to think or judge for himself or consult) his friends or relations in the matter. (5) the appellant was quite unwilling to enter into the compromise, but his pleader threatened him.....
Judgment:

Norman Macleod, Kt., C.J.

1. There were three suits pending in the Court of the First Class Subordinate Judge at Jalgaon On March 7, 1923, a consent decree was passed in terms of a certain compromise signed by all the parties including the present appellant except a formal party against whom no relief was claimed. The Judge said :-

These three suits have been amicably settled by throwing the whole responsibility for the amount payable to plaintiff' on defendant No. J. So the minor defendant's share or interests in no way are prejudiced The plaintiff has been given in addition some property, but even then it would be within the limits of defendant No. 1's share.

2. The plaintiff has now filed an appeal against this consent decree and in the grounds of appeal it is stated as follows :-

(1) The order recording the compromise in the aforesaid suits is illegal and improper. (2) It is not proved to the satisfaction of the Court that the three suits were adjusted wholly or in part by a lawful agreement) or compromise. (3) Under Order XXIII. rule 3 of the Civil Procedure Code, the Court has be satisfy itself by positive proof that there has been a lawful agreement to adjust the suit before ordering the agreement to be recorded. In the present case the Court passed the order without any inquiry, or proof on this point. (1) The said compromise was brought about by the appellant a pleader Mr. Juwekar with undue haste, without mature deliberation, and without giving the appellant sufficient time to think or judge for himself or consult) his friends or relations in the matter. (5) The appellant was quite unwilling to enter into the compromise, but his pleader threatened him that if ho did not sign the agreement of compromise as proposed by him, he would be ruined. (6) The circumstances under which the appellant was forced to sign the agreement of compromise against his will are fully set out in the appellant's affidavit. They clearly show that the suits were not adjusted by a lawful agreement. The said agreement is therefore not binding on the appellant.

3. A preliminary point was taken that an appeal from a decree passed by the Court with the consent of parties is barred by Section 96, Sub-section 3. The appellant urges that the Court has passed an order under Order XXIII, Rule 3, arid that an appeal lies under Order XLIII, Rule 1, Clause (m), from such an order. But in this case there was no question whether an agreement had been arrived at, the terms were signed by the parties and all that the Court had to do was to pass a decree according to the terms 10 which the parties had agreed. There was no adjudication, therefore, on the question whether a lawful agreement had been arrived at, because it was never disputed that the parties before the Court had come to an agreement. It was open to any one of the parties before the decree was passed to contend that a lawful agreement had not been arrived at.

3. Under these circumstances we think that no appeal is competent. There are other remedies open to the appellant if he thinks fit to pursue them. The appeal will be dismissed with costs.


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