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Mt. Shah Jahan Begam Vs. Ghulam Rabani - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All738; 155Ind.Cas.1067
AppellantMt. Shah Jahan Begam
RespondentGhulam Rabani
Excerpt:
- .....of the compromise which, shall be reproduced in the decree. costs on, parties.2. against this decree an appeal was filed under order 43(m), civil p.c., by the defendant. the chief grounds, taken by her in the memorandum of appeal were:(1) because the learned munsif was wrong, in not recording the so-called compromise and in not enquiring whether the compromise was acceptable to the appellant and (2) because the so-called compromise was effected without consent of the appellant and was not binding on her.3. the learned subordinate judge of agra found that the trial court had omitted to order the recording of the compromise but the compromise was, made with the consent of the appellant. the learned subordinate judge was of the opinion that there was no reason to interfere with the.....
Judgment:

Ganga Nath, J.

1. This is a defendant's appeal and arises out of a suit brought against her by the plaintiff. The parties entered into a compromise on which a decree was passed. The trial Court's order was:

The parties have come to terms. Suit is decreed in the terms of the compromise which, shall be reproduced in the decree. Costs on, parties.

2. Against this decree an appeal was filed under Order 43(m), Civil P.C., by the defendant. The chief grounds, taken by her in the memorandum of appeal were:

(1) Because the learned Munsif was wrong, in not recording the so-called compromise and in not enquiring whether the compromise was acceptable to the appellant and (2) because the so-called compromise was effected without consent of the appellant and was not binding on her.

3. The learned Subordinate Judge of Agra found that the trial Court had omitted to order the recording of the compromise but the compromise was, made with the consent of the appellant. The learned Subordinate Judge was of the opinion that there was no reason to interfere with the decree of the trial Court. The compromise, as a matter of fact, was verified by the appellant's counsel who had full authority to compromise the suit. The parties had taken one day's time for the-compromise and the compromise was filed the next day. The appellant's son, who was living with the appellant, was looking after the case in the trial Court. The learned Subordinate Judge has observed:

From the evidence on the record it is clear that the appellant's case in the trial Court was managed by her own son. The son and his mother (the appellant) live together in Agra. One whole day was taken by the parties to consider the compromise, before it was filed on the following day.

4. The learned Subordinate Judge was of the opinion that the technicality did hot vitiate the compromise. The learned Subordinate Judge recorded a finding : 'I find, as a matter of fact, that she entered into a compromise.' A preliminary objection has been taken by the learned Counsel for the respondent that no second appeal lies. As already stated, the appeal in the lower Court was under Order 43(m), Civil P.C. The heading of the memorandum of appeal also shows that the appeal was filed under Order 43(m), Civil P.C. Section 104(2), Civil P.C., lays down that no appeal shall lie from any order passed in appeal under this section. It is evident that no second appeal lies. The learned Counsel for the appellant states that the matter may be considered on the revisional side. The question is whether the omission to record the compromise is fatal to the validity of the decree. The defect is cured by Section 99, Civil P.C., which lays down:

No decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

5. As already stated, it has been found by the lower appellate Court that the compromise was entered into by the appellant. The omission to record the compromise does not affect the merits of the case or the jurisdiction of the Court. The defect therefore is cured by Section 99, Civil P.C., and consequently, there is no reason for interference even on the revisional side. It is therefore ordered that the appeal be dismissed with costs and the decree of the lower Court be confirmed. Permission to file a Letters Patent appeal is rejected.


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