1. This is a notice of motion for recording a compromise and Mr. Purshottam on behalf of the plaintiff has raised a preliminary objection that the notice of motion is not competent because defendant No. 3 has not obtained leave to defend and is not therefore entitled to initiate any proceedings in this suit.
2. Now, it appears that conditional leave had been granted to defendant No. 3, and he had to deposit a certain sum of money by a date which has expired long ago and the deposit has not been made. It is, therefore, clear that he is not entitled to appear and defend the suit; but the question is whether that precludes him from taking out a notice of motion for recording a compromise.
Order XXXVII, Rule 3, provides that in a summary suit the Court may give leave to the defendant to appear and defend a suit. This obviously is defence on the merits, and the marginal note in fact says 'Defendant showing defence on merits to have leave to appear.' When one turns to the provisions of Order XXIII, Rule 3, it is provided that where a Court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the Court shall order such agreement or compromise to be recorded and shall proceed to pass a decree in terms thereof. Under this rule it is obligatory on the Court if an agreement or compromise is proved at any time before passing a decree to record the agreement and to proceed to pass a decree in terms of such an agreement. In my opinion where a defendant seeks to have a compromise recorded he is not defending a suit on the merits and it is not necessary for a defendant in a summary suit to obtain leave to defend for the purpose of taking out a notice of motion for recording a lawful compromise.
3. [The rest of the judgment is not material to the report.]
4. There is, therefore, no answer to the notice of motion. There is a concluded compromise, the conditions precedent to that compromise taking effect have been duly fulfilled. I will, therefore, make the notice of motion absolute and pass a decree in terms of the compromise. Clause 9 to be struck out from the consent terms as annexed because it was agreed between the parties that it had to be struck off. The plaintiff to pay the costs of the notice of motion.