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GousmohoddIn Gajabur Saheb Bhagwan and anr. Vs. Appasaheb - Court Judgment

LegalCrystal Citation
SubjectContract;Tenancy
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 1407 of 1973 and C.R.P. No. 2091 of 1974
Judge
Reported inAIR1976Kant90; ILR1976KAR681; 1976(1)KarLJ543
ActsIndian Contract Act, 1872 - Sections 23 and 28
AppellantGousmohoddIn Gajabur Saheb Bhagwan and anr.
RespondentAppasaheb
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateG.D. Shirgurkar, Adv.
Excerpt:
.....grave injustice to the appellant in not properly appreciating the evidence both oral and documentary before concluding that the claimant suffered from fractures of the 6th, 7th and 8th ribs in the accident that occurred. thus it goes without saying that disability cannot be believed and is unacceptable. compensation of rs. 1,49,000/- awarded by tribunal was reduced to rs. 20,000/- with interest at 8 & p.a. - it is now well settled that an agreement whereby the parties agreed not to appeal from a decree is binding on the parties thereto if the agreement is for lawful consideration and is otherwise valid an undertaking not to prefer an appeal from a decree is lawful consideration 5. in gajendra singh v. it is also laid down in the said decision that the high court has inherent..........agreement executed by them on 3-11-1973 not to prefer an appeal against the decree pawed by the learned civil judge against the appellants. it is therefore necessary to take up 1. a. no. 3 in the first instance.3. the respondent has produced the original agreement mid to have been executed by the appellants, on 3-11-1973. it is in kannada and bears the signatures, of the appellants and two wit nesses, m/s desai and shetty. it is stated therein that the decree holder, in execution of the decree for arrears of rent and costs awarded to him, obtained, an order for attachment of the movables belonging to the appellants. it is in this background that the agreement was entered into ' it is stated that the appellants paid a sum of rs. 900/- and that they were granted one month's time by the.....
Judgment:

1. The respondent landlord filed a suit for possession of the suit Premises against the appellants defendants and for mesne profits. The suit was decreed by the court of first instance. That decree has been affirmed on appeal by the Civil Judge Chikodi, in R. A. No. 564 of 1972. Hence, this second appeal by the original defendants under Section log of the Code of Civil Procedure.

2. At the outset, Sri G. D. Shirgurkar, learned counsel appearing for the respondent, submitted that 1. A. No. 3 field by him should be taken up for consideration in the first instance as already directed by this Court. In 1. A. No. 3 the respondent has prayed that the appeal be dismissed and the appellants be precluded from prosecuting the appeal, in view of the solemn agreement executed by them on 3-11-1973 not to prefer an appeal against the decree pawed by the learned Civil Judge against the appellants. It is therefore necessary to take up 1. A. No. 3 in the first instance.

3. The respondent has produced the original agreement mid to have been executed by the appellants, on 3-11-1973. It is in Kannada and bears the signatures, of the appellants and two wit nesses, M/s Desai and Shetty. It is stated therein that the decree holder, in execution of the decree for arrears of rent and costs awarded to him, obtained, an order for attachment of the movables belonging to the appellants. It is in this background that the agreement was entered Into ' it is stated that the appellants paid a sum of Rs. 900/- and that they were granted one month's time by the respondent for paying the remaining decretal amount it Is further stated in the said agreement that the appellant will not prefer any appeal to the High Court and that they will deliver possession of the suit premises within am month's time granted by the respondent. The appellants have filed a counter affidavit admitting their signatures on the agreement dated 3-11-1973. They have, however, taken the stand that they signed on a blank paper in the Presence of Sri V. B. Nuli and Sri Bagavan for being used for referring their dispute to arbitrators. In other words, they disowned their responsibility in regard to the contents of the agreement and took the stand that the-e was no agreement between the parties as stated in the alleged agreement dated 3-11-1973.

The respondent has filed the affidavits of the two attesters to the agreement who have testified to the correctness and execution of the agreement. The respondent has also filed the affidavit of Sri V. B. Nuli. He has stated in the affidavit that there was no agreement to refer the dispute to the arbitrators and that no paper signed by the appellants was given for being used to write a document for referring the dispute to the arbitrators. Sri Nuli is the very person referred to in the counter-affidavit of the appellants as the person in whose presence such an understanding regarding reference to the arbitrators was arrived at and the blank paper containing the signatures of the appellants was obtained, Sri Nuli is a Member of the Legislative Assembly and a responsible person. The appellants themselves have stated that the event pleaded by them took place in the presence of Sri Nuli As Sri Nuli himself does not support the case of the appellants, it is difficult to be leave the theory put forward by them in the counter affidavit. It is also necessary to bear in mind that the appellants have not filed any affidavit of Sri Raghavan the only other person in whose presence the event took place, according to the appellants. I have therefore no hesitation in rejecting the case put forward by the appellants and hold that the agreement dated 3-11-1973 was executed by them and that the contents of the said agreement were written by them voluntarily before they affixed their signatures to the mid document.

4. The next question for consideration is about the effect of the said agreement dated 3-11-1973. Under the said agreement, as already stated, the appellants avoided the effecting of the attachment of their movables and gained time in the matter of paying the remaining decretal amount and for delivery of possession. The consideration for the same was the undertaking given by the appellants not to prefer any appeal to the High Court Against the decree passed by the learned Civil Judge. It is therefore clear that the agreement is supported by consideration. It is now well settled that an agreement whereby the parties agreed not to appeal from a decree is binding on the parties thereto if the agreement is for lawful consideration and is otherwise valid an undertaking not to prefer an appeal from a decree is lawful consideration

5. In Gajendra Singh v. Durga Kumari : AIR1925All503 , the Full Bench of the Allahabad High Court has laid down that forbearance to sue and forbearance to take definite steps to enforce legal rights, have always been held to be adequate consideration to support an agreement, particularly an agreement where there are mutual considerations and both parties are intending, and agree, to make an end of their dispute. It is also laid down in the said decision that the High Court has inherent discretion to decline to allow an appellant to prosecute an appeal the moment it is satisfied that the appellant by his solemn act and deed, testified to by his signature for what he considered adequate consideration, has expressly abandoned his right and undertaken to withdraw his appeal. To the same effect is the view taken by Nagpur High Court in Shivaji v. Ratiram AIR 1031 Nag 126. I am in respectful agreement with the view taken in the aforesaid decisions.

6. In view of the agreement Dt.3-11-1973 produced by the respondent along with I. A. No. 3, this appeal has to be dismissed as the appellant and have agreed not to prefer the appeal under the said agreement. Hence, R. S. A. No. 1407 of 1973 fails and is dismissed with costs,

7. So far as C. R. P. No. 2091 of 1974 is concerned, the same has to be dismissed for the reasons to be stated presently. The respondent, on the assumption that there is no direction regarding future mesne profits, made an application to the court of first instance, that application was resisted by the appellant. The learned Civil Judge has allowed the said application. It is the said order that is challenged by the petitioners in this revision petition.

8. It is clear from the decree passed by the learned Civil Judge that there is a specific direction so far as the mesne profits are concerned. Hence, the application of the respondent before the court of first instance was wholly unnecessary. There are, therefore, no good grounds to interfere with the order passed, by the learned Munsiff. The revision petition is accordingly dismissed. No costs.

9. Order accordingly.


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