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Thakur Prasad Vs. Bhagwandas - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. Nos. 1910 and 1784 of 1983
Judge
Reported in1985MPLJ149
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96, 96(1), 96(3) and 115 - Order 23, Rule 3A - Order 43, Rule 1 and 1A(2)
AppellantThakur Prasad
RespondentBhagwandas
Appellant AdvocateR.P. Jain, Adv.
Respondent AdvocateS.S. Jha, Adv.
DispositionRevision dismissed
Cases ReferredA. V. Narasimha Raju v. K. Yellamanda
Excerpt:
- - as to the decree which is passed by a court refusing to record a compromise, although a party alleged such a compromise and asked for recording the same, in the appeal against the decree passed, the correctness of the order refusing to record the compromise can very well be challenged under section 105 and also under sub-rule (2). similarly if the compromise is not lawful and should not have been recorded and the decree is passed an appeal is maintainable and not barred under section 96(3). 5. i find support to our view from a single bench decision of the bombay high court in anant v. ghulam rasul air 1929 sind 32 (supra) is now good law and not the majority view of other high courts. clearly the intention of the legislature in making the amendments in the civil procedure code was.....c. p. sen, j.1. this opinion shall also govern civil revision no. 1784 of 1983 between the same parties. both these revisions arise out of the same suit. the following question has been referred by the learned single judge for opinion of this bench :'whether in view of the deletion of sub-rule (m) of rule 1 of order 43 of the code of civil procedure by the amending act no. 104 of 1976, an appeal is competent under order 43. rule 1-a, particularly when there is a bar to appeal under section 96(3) of the code of civil procedure?'2. the parties are real brothers. their father dhannalal died in the year 1964 leaving behind his widow smt. reotibai and five sons, including the applicant and non-applicant. by agreement dated 29-1-1980. the legal representatives of dhannalal, referred the dispute.....
Judgment:

C. P. SEN, J.

1. This opinion shall also govern Civil Revision No. 1784 of 1983 between the same parties. Both these revisions arise out of the same suit. The following question has been referred by the learned Single Judge for opinion of this Bench :

'Whether in view of the deletion of Sub-rule (m) of Rule 1 of Order 43 of the Code of Civil Procedure by the Amending Act No. 104 of 1976, an appeal is competent under Order 43. Rule 1-A, particularly when there is a bar to appeal under Section 96(3) of the Code of Civil Procedure?'

2. The parties are real brothers. Their father Dhannalal died in the year 1964 leaving behind his widow Smt. Reotibai and five sons, including the applicant and non-applicant. By agreement dated 29-1-1980. the legal representatives of Dhannalal, referred the dispute regarding the property left by the deceased to Panchas. However, due to certain opposition the Panchas could not give their award and closed the proceeding. The non-applicant then filed civil suit for possession of house No. 147. Girja Kund Ward. Seoni claiming it to be his exclusive property and it was alleged that as the applicant came on transfer, the non-applicant permitted him to stay in the house but thereafter he has not vacated the same. The applicant, on the other hand, contended that the suit house is joint family property and was purchased out of joint family funds but the sale deed was taken in the name of the non-applicant. However, on 16-3-1982, parties filed a compromise application in the suit and the case was fixed for 19-3-1982. On that day the applicant opposed the compromise application saying that his signature has been taken under coercion and it was not legal becuase it embraces property other than the suit property and also involved persons not party to the suit. After recording some evidence, the trial court came to the conclusion that the compromise was voluntarily executed and passed a decree in terms thereof on 7-4-1982. The applicant filed Misc. Civil Appeal No. 10 of 1982 in the court of District Judge under Order 43, Rule I-A of the Code of Civil Procedure, which was registered as Misc. Appeal. The appeal was dismissed on merits on 9-10-1982. The applicant has also preferred Civil Revision No. 965 of 1982 in this court against the order of the trial court dated 7-4-1982. This court by order dated 4-4-1983 in Civil Revision No. 965 of 1982 set aside the compromise recorded by the trial court observing that the compromise was invalid as it embraces bulk of the properties which were not the subject matter of the suit and also it includes certain other persons who were not parties to the suit and that being so, even if the compromise is held to be with free consent of the applicant, it will not be possible to uphold the decree. Therefore, the case was remanded to the trial court with a direction that it would be open to the non-applicant to urge that Clause 2(k) relates only to the suit property and is between the parties to the suit and at least a decree with respect to that part of the compromise should be passed and it would be open to the applicant to show that this Clause 2(k) is inseparable from other clauses and it is an integral part of the agreement. Thereupon the impugned order has been passed by the trial court on 10-10-1983 holding that Clause 2(k) is not inseparable from the compromise and it can stand by itself and as such a decree in respect of eviction of the applicant from the suit property has been passed. Against this order Civil Revision No. 1784 of 1983 has been preferred. The applicant also preferred an appeal under Order 43, Rule 1-A before the District Judge, who by order dated 28-10-1983 directed that as a regular appeal lies under Section 96 of the Code against the judgment and decree of the trial court proper court-fee must be paid. Since no proper court-fees were paid, the appeal was dismissed as not tenable by the District Judge on 16-11-1983. Against this order Civil Revision No. 1910 of 1983 has been preferred.

3. For a proper appreciation of the question referred, it would be necessary to mention here what was the law applicable to compromise decrees under the Code before its amendment by Amending Act No. 104 of 1976. Order 23. Rule 3 provided that where it is proved that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the court shall pass a decree in accordance therewith so far as it relates to the suit. Order 43. Rule 1(m) provided that an appeal shall lie from an order under Order 23, Rule 3. recording or refusing to record a compromise. Under Section 96(3) no appeal lay from a decree passed by the Court with the consent of the parties. The Privy Council in Znhirul Said v. Lashmi Narayan. AIR 1932P. C. 251 has held that the proper method for questioning a consent decree is either by review or by regular suit and not by way of appeal. The Supreme Court in K. C. Dora v. G. Annamanaidu. AIR 1974 SC 1069 has held that Order 23, Rule 3 not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful, the decree to the extent it was a consent decree, was not appealable because of the express bar in Section 96(3). Therefore, it appears that the law as it stood before the amendment in 1976 was that a consent decree can be set aside in a Miscellaneous Appeal and not by way of regular appeal under Order 43, Rule l(m) and also by way of a civil suit. Further there was unanimity in the dicisions of the High Courts that a consent decree which is not lawful, i.e. void, can be set aside and an appeal was competent in spite of Section 96(3). However, the minority view was that even if the factum of compromise is in dispute still an appeal will be barred in view of Section 96(3). The Madras, Lahore, Patna, Calcutta and Travancore & Cochin High Courts have taken the view that even if the compromise is resiled by one of the parties, still no appeal will be competent in view of Section 96(3). Govindaswami v. Kaliaperumal, AIR 1921 Mad 696 Gurchaman Singh v. Shibdev Singh, AIR 1922 Lahore 309, Sabitri Thakurain v. Mrs. F. A. Savi, AIR 1933 Pat 306, Mahammad Mia v. Osman Ali, AIR 1935 Cal 239 and B. Meerakutty v. K. Meerakutty, AIR 1952 Trav Co. 91. However, this court in Renuka v. Onkar, AIR 1918 Nag 129 has held that the right of appeal generally given against all decrees by Section 96, Sub-sections (1) and (2) Civil P. C., is only withheld by Sub-section (3) in the case of decree passed with the consent of parties. Sub-section (3) is limited to cases where the parties invite the court to pass a particular decree and the court acts accordingly. A decree based on a finding arrived at by the Court against the consent of one party, to the effect that the matter in dispute has been compromised, is not a decree passed with the consent of parties and Section 96(3) has therefore no application to it. The same view has been taken in Mt. Ummakulsum v. Ghulam Rasul, AIR 1929 Sind 32 that Section 96(3) does not bar a right of appeal by a person who denies that hewas a party to the alleged compromise. Majority of the decisions were to the effect that when challenge to the compromise decree which is not altogether void but only voidable, i.e. entered into by fraud, undue influence or misrepresentation, then the matter is not within the ambit of Rule 3 of Order 23 and must be left to be decided by a separate suit. An appeal was provided under Order 43, Rule l(m) against recording or non-recording of the compromise. Therefore, the law as it stood, apart from filing an appeal under Order 43, Rule l(m), recourse can be had against the compromise decree by way of filing a separate suit.

4. After the amendment of the Code by Amending Act No. 104 of 1976, Order 23, Rule 3 provides that where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement in writing and signed by the parties in respect of the whole or any part of the subject matter of the suit, the court shall record such agreement or compromise and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement is the same as the subject matter of the suit. Under the explanation an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of this rule. Therefore, under the amended provision, it has to be proved to the satisfaction of the court that there is a lawful compromise, i.e. it is neither void nor voidable, Consequently, the court can embark upon an enquiry, whether or not the compromise is vitiated due to undue influence, fraud or misrepresentation. Now Rule 3-A has been added to Order 23, which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Therefore, now a suit cannot be filed to challenge a compromise even if it was not lawful. Order 43, Rule l(m) has now been deleted but Rule 1-A has been added to Order 43. Under Sub-rule (1) right has been given to a party to challenge non-appealable orders in appeal against the decree and under Sub-rule (2) in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not have been recorded. However, section 96(3) remains as it was, i.e. no appeal shall lie from a decree passed by the court with the consent of ihe parties. Now the question remains what remedy will be open to a party against a compromise decree. There can be no doubt that an appeal will lie in spite of Section 96(3) if the compromise decree is a nullity under the provisions of any law or is ultra vires of some Act or is without jurisdiction. Now the question is whether an appeal could be entertained if the consent decree is voidable, i.e. vitiated by undue influence, fraud or misrepresentation. According to us. an appeal can lie in spite of Section 96(3) even if the compromise decree is challenged on the ground that it is voidable. Otherwise provisions of Order 43. Rule 1-A will become otiose and meaningless. Mulla on Code of Civil Procedure. 14th Edition, commenfing on Section 96(3) has opined that the distinction made between the two clauses of cases, namely, those where the factum of compromise is in dispute and those in which its legality is in question cannot be sustained in principle and such a distinction is not tenable in view of the deletion of Clause (m) of Rule 1 of Order 43 by Ihe Amendment Act. 1976 and which renders the decisions cited in footnote inapplicable. Sarkar on Civil Procedure Code, 6th Edition, while commenting on Order 43, Rule 1-A has opined that Sub-rule (2) makes an express provision consequent upon abolition of right of appeal against an order under Order 23, Rule 3 recording or refusing to record an agreement or compromise permitting a party, in an appeal against the decree passed in a suit, to contest the decree on the ground that the compromise should or should not have been recorded. As to the decree which is passed by a court refusing to record a compromise, although a party alleged such a compromise and asked for recording the same, in the appeal against the decree passed, the correctness of the order refusing to record the compromise can very well be challenged under Section 105 and also under Sub-rule (2). Similarly if the compromise is not lawful and should not have been recorded and the decree is passed an appeal is maintainable and not barred under Section 96(3).

5. I find support to our view from a single bench decision of the Bombay High Court in Anant v. Achut, AIR 1981 Bom 357 that Order23, Rule 3-A bars the remedy of a second suit on the cause of action that the compromise which resulted in the passing of the decree was not lawful. However, an appeal lies under Rule 1-A of Order 43. The intention of the legislature being to do away with multiplicity of proceedings. Rule l(m) of Order 43 has also been omitted because the aggrieved party can take the point that the compromise ought or ought not to have been recorded in an appeal against the decree under the added Rule 1-A. According to us an appeal lies under Section 96 read with Order 43. Rule 1-A. However, a contrary view has been taken by a Division Bench of the Andhra Pradesh High Court in G. Peddireddi v. G. Tirupathy Reddy, AIR 1981 Andh Pra 362 that an order rejecting to record a compromise is not appealable under Section 96. though for different reasons by two Judges. As per Seetharama Reddy, J.. the order does not amount to a decree and so no apeal lies under Section 96, while, according to Raghuvir, J., though the order is a decree but no appeal lies because Rule Km) of Order 43. under which an appeal was provided, has been deleted by the Amendment Act of 1976. The Andhra Pradesh High Court overruled the provision of Order 43. Rule 1-A, though mentioned allout the recommedations of the Law Commission adding of rule to Order 43 to the effect that an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it is open to 1 he appellant to contest the decree. Therefore, Section 96(3) bars an appeal against a compromise decree if it is lawful. Under the circumstances, the minority view of this court in Renuka v. Onkar AIR 1918 Nag 129 (supra) and that of the Sind Judicial Commissioner's Court in Mt. Ummakulsum v. Ghulam Rasul AIR 1929 Sind 32 (supra) is now good law and not the majority view of other High Courts. Consequently, an appeal lies under Section 96 against a compromise decree which is not lawful, i.e. either void or voidable, and the bar under Section 96(3) is only against lawful compromise decrees.

6. The apparent conflict between Section 96(3) and Order 43, Rule 1-A can only be resolved in the manner suggested by us. The court should lean against a construction which would make any particular provision futile. The court should also, as far as. possible, avoid construction which results in anomaly. Clearly the intention of the Legislature in making the amendments in the Civil Procedure Code was to simplify the procedure and avoid multiplicityof proceedings in order to curtail litigation. Therefore, the clear intention in enacting Order 23. Rule 3-A and deleting Order 43. Rule l(m) and adding Rule 1-A to Order 43, is that whatever objection may he against recording or non-recording of the compromise should he in the same proceeding, that is. firstly in the suit and then in appeal under Section 96. If it is otherwise, then the party will he left with no remedy when the court wrongly records a compromise or refuses to record a compromise, because the party aggrieved cannot file a separate suit and the appeal under Order 43. Rule Km) has been abolished, so he has to challenge the same in the appeal against the decree that may he filed under Section 96 read with Order 43, Rule 1-A. If the appellate court finds that a compromise was lawfully recorded, then the appeal has to be thrown out as incompetent. If any other interpretation is put then Order 13. Rule 1-A(2) becomes meaningless. If there can be no appeal against the decree recording a compromise then what is the purpose in saying in this sub-rule that the recording of the compromise can he challenged in an appeal against the decree, which means that if the compromise is not lawful then an appeal can he filed and recording of the compromise can be challenged under this sub-rule.

7. In the present case, a regular appeal lies against the compromise decree to the District Judge, hut since the appeal has been dismissed for non-payment of proper court-fees, an appeal lies against the order of the District Judge, as has been held by the Supreme Court in Shamsher Singh v. Rajinder Prasad, AIR 1973 SC 2384. Therefore, a revision does not lie against the order of the trial court recording the compromise and passing a decree in terms thereof.

8. An application has been filed under Section 149 by the applicant in Civil Revision No. 1910 of 1983 for permission to pay the deficit court-fees. Such an application should he filed in Civil Revision No. 1784 of 1983 also and the matter will he duly considered by the learned Single Judge.

9. Therefore. Civil Revision No. 1910 of 1983 is no! competent but it is open lo the applicant to apply for conversion of Civil Revision No. 1910 of 1983 into a regular second appeal.

10. I therefore, opine that an appeal ties under Section 96 read with Order 43, Rule 1-A ofthe Code of Civil Procedure against recording of a compromise by the trial Court. provided the compromise is not lawful.

GULAB GUPTA, J.

11. I am in full agreement with the conclusion recorded by my learned brother that the present revision is not maintainable. However, the functional focus to which my legal lenses are adjusted compels me to record my own reasons.

12. The submission that the legal landscape painted with the aid of Section 96(3) of the Code of Civil Procedure, has become blurred because of newly added provision of Order 43. Rule 1-A. does not appeal to me. The gravitational pull of 1976 amendment was to simplify law with a view to avoid delay in achieving finality. The law before the amendment of 1976 permitted not only an appeal from the order recording or refusing to record a compromise under Order 23. Rule 3 C.P.C.. hut also permitted challenge to the final decree either by a review or by a regular civil suit. This, without doubt, had the effect of lengthening the litigation and cause unnecessary hardship. Deletion of Clause (m) from Order 43, Rule 1 C.P.C. and addition of Order 43. Rule 3-A have the effect of trimming this litigative length. Similarly, the addition of Order 23. Rule 3-A has the effect of clarifying this intention. The judicial prudence obliges us to secure this intention of the legislature by adopting a functional approach. In spite of it. while interpreting this provision, it cannot he ignored that the legislature, while enacting the Amending Act. did not effect any change in Section 96(3) of the Act. Whether any conflict has arisen because of these measures

13. The conflict is said to be existing between Section 96(3) which acts as an exception to the general rule contained in Section 96(1) C.P.C. and prohibits an appeal from a decree passed by the Court with the consent of the parties and Order 43. Rule 1-A C.P.C. when permits the appellant, in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, to challenge the decree on the ground that the compromise should or should not have been recorded. Prohibition contained in Section 96(3) operates against a decree passed with the consent of parties whereas the right conferred under Order 43. Rule 1-A is in cases where a decree has been passed as a consequence of a non-appealable order or after recording a compromise or refusing to record a compromise. If the two provisions operate within the same sphere and have the same meaning, the conflict would arise and would need resolution by judicial interpretation. A decree passed after refusing to record the compromise is. without doubt, different from a decree passed with the consent of parties. The question requiring consideration, therefore, is whether a decree passed after recording the compromise within the meaning of Order 43, Rule 1-A (2) C.P.C. is the decree passed with I he consent of the parties?. The language used in Order 43. Rule 1-A(2) does not prompt an affirmative answer to this question. A compromise may be the result of an agreement and recorded with the consent of the parties and a decree passed. In such a case, there would be no dispute about the compromise and the enquiry before the court would remain confined to whether the suit has been adjusted wholly or in part as proposed in the compromise and a decree would be passed if the court is satisfied about it. In such a case, it would be reasonable to exclude an appeal by applying the bar of Section 96(3) of the Act. After all a judgment by consent operates as an estoppel and, therefore, no useful purpose would be served by giving a right of appeal against the consequential decree. To this extent, there is no difficulty nor a conflict of any kind is discernible.

14. The difficulty arises in a case where compromise is recorded in spite of opposition from one of the parties. It may. at this stage, be useful to notice the difference of language used in various provisions. Order 23, Rule 3 C. P.C. deals not only with the lawful agreement of compromise, which, after 1976 amendment, has to be in writing and signed by the parties, but also with the satisfaction of the plaintiff by the defendant in respect of whole or part of the subject-matter of the suit. However, bar to a fresh suit as contained in Order 23, Rule 3-A is only against a decree based on compromise. An appeal contemplated under Order 43, Rule 1-A is, however, against a decree which is consequential to an order against which no appeal lies and may include every order passed under Order 23. Rule 3 C.P.C. But the bar of section 96(3) is. limited to a decree passed with the consent of the parties, and would not applyto other cases. It. therefore, appears that except in cases covered by Section 96(3) C.P.C.. an appeal against a decree consequential to an order under Order 43, Rule 1-A is permissible and a fresh suit for the said cause is barred under Order 23. Rule 3-A C.P.C. What then is the meaning of the term 'with the consent of the parties'? Is agreement between the parties about the compromise and consequential decree essential? Or. even a decree passed by the court, in spite of disagreement between the parties, would be a decree passed with the consent of the parties because they had earlier signed the compromise. The proposition that a decree which is the result of agreement should act as an estoppel has been noticed as jurisprudentially sound and, hence, there could be no objection to applying the bar in such cases. But in cases where parties are not agreed upon the term and scope of the compromise, it would be difficult to apply the principle of estoppel. The foundation of the rule of estoppel is the equitable doctrine that it would be unjust if a person, who by his representation, has induced another to act as he otherwise would not have done is permitted to deny the truth of his former representation to the detriment of the person who acted on it. B. Coleman & Co. v. P. P. Das Gupta. AIR 1970 SC426. The twin requirements of 'representation' by one and 'acting' upon the said representation by another remains missing in a case where parties differ on meaning and scope of the terms of the compromise even before it has become effective by an order or decree of the court. A mere compromise, without being accepted by the Court, is of no consequence. Clearly, therefore, the basic or fundamental reason for the bar created by Section 96(3) C.P.C.. does not exist in a case where the parlies are not agreeable to the compromise and the court has lo enforce it in spite of the opposition of the party or parties.

15. In spite of it some High Courts have interpreted the words in Section 96(3) C.P.C. to include even those cases where the compromise was resiled by one of the parlies and the court has to record its own findings about the correctness of the position. These cases have been noticed by my learned brother. This cannot now be accepted as the correct view, as the amendment of 1976 has made substantial change in the law. Addition of Order 43, Rule 1-A. permitting challenge to a compromisedecree, has taken away much of the force of these judgments. Then, it has to be appreciated that Sub-section (3) of Section 96 is only a proviso to the general rule contained in Sub-section (1), which permits an appeal from every decree. Opening words of Sub-section (1) unmistakably point that rule in Sub-section (3) is only an exception to the general rule. The golden rule of interpretation is to read the whole section, inclusive of the proviso together and determine their meaning in the context. So construed the section must be interpreted as giving a right of appeal against all decrees except one passed by the court with the consent of the parties. The words, 'with the consent of parties' do not have any technical meaning or significance and, hence, must be given their natural, ordinary and grammatical meaning. This, however, is subject to well recognised rule that such a meaning should not lead to an absurdity and there should be nothing in the context or object of the statute to suggest the contrary. I have already examined the context and the object of the provision and have discovered nothing to depart from the normal rule. Under the circumstances, these words will have to be understood in their normal ordinary and grammatical meaning. So understood, they must deal with those cases only where there is no dispute between the parties about the compromise and the decree is passed with their consent This interpretation not only gives meaning to all the provisions of the Code, but also furthers the purpose of the amendment Clearly, therefore, the bar of Sub-section (3) of Section 96 would not be attracted in a case where the decree is passed under compulsion of the court. Earlier decision of this court in Renuka v. Omkar, AIR 1918 Nag 129 is not the only decision taking this view and is supported by E. Kotamma v. N. Mangamma, AIR 1957 Andh Pra 700 and Jagdish Narain v. Rasul Ahmad, AIR 1952 All 29. The logic of these decisions has become relevant and forceful after the amendment and must, therefore, be accepted

16. The view that I have taken is in accord with the functional approach current in today's legal thinking. The approach to say the least aims at giving effect to the intention of the legislature in the context of realities of life. The intention of the legislature clearly is to shorten the life of litigation by permitting an appeal and the interpretation given by me wouldundoubtedly further the said cause. The decision of Bombay High Court in Anani v. Achut AIR 1981 Bom 357, also follows this line of reasoning and is, therefore, preferable to the decision of Andhra Pradesh High Court in G. Peddireddi v. G. Tirupathy Reddy, AIR 1981 Andh Pra 362.

17. As far as the present case is concerned, there is hardly any justification for holding that the impugned decree is either a 'compromise decree' or a decree passed with the 'consent of the parties'. The compromise by the parties imposed 'reciprocal obligations' on both of them as already decided by this court in its revisional order dated 4-4-1983 (Thakur Prasad v. Bhagwandas, Civil Revn. No. 965 of 1982. decided on the 4th April, 1983), but the impugned decree does not give effect to these 'reciprocal obligations'. A plain reading of Order 23, Rule 3, C.P.C. requires a compromise between the parties which is legally enforceable. The existence of a compromise is, therefore, the necessary pre-condition to the passing of a decree. The revisional order of this court has already decided that, the compromise, as it was presented by the parties for acceptance of the trial court was not binding against other co-sharers of the property and for this reason, did not bind the parties giving consent to it In view of this finding, one may ask if there was in existence any 'lawful compromise' which is the basic requirement of the rule. True that the last part of the revisional order directed the trial court to ascertain if Clause 2(ka) of the compromise can stand by itself and be given effect to in isolation. This, however, did not mean that simply because a clause in the compromise could stand by itself, it should be treated to be the 'lawful compromise' for purposes of Order 23, Rule 3 C.P.C. The direction of this court required consideration in the context of existing law on the subject The court was bound to consider if Clause 2(ka) of the compromise could, by itself, be treated to be a 'compromise' in law and if its answer to this question was in affirmative, then to consider further if it was 'lawful', particularily when the compromise, according to this court imposed 'reciprocal obligations' on the parties. This required consideration of provisions of the Contract Act read in the context of Section 12 of the Specific Relief Act 1963, which contains the general rule against specific performance of part of an agreement. A compromise for purposes of Order 23, Rule 3 C.P.C., must reflect the true intention of the parties and the Court, in cases of objection, is bound to attempt discovery of this intention before holding that a compromise really existed. This has not been done in the present case. The parties intended that each of them should have a house of their own to live in. They never intended that the plaintiff alone should have the house. The decree, however, intends conferring this right on the plaintiff alone, in spite of an intention to the contrary. Clearly, therefore, the impugned decree does not give effect to the 'compromise' between the parties and, hence, falls outside the term 'compromise decree'.

18. There is yet another aspect of the matter. The suit house is alleged to be joint family house and is in possession of the non-applicant. The plaintiff claims his exclusive ownership and seeks a declaration in the suit. If the suit house is joint family house, the applicant has no right to accept the ownership of the non-applicant and, thereby, prejudice the right of other co-owners. This was precisely the reason why this court has set aside the earlier decree in its revisional order dated 4-4-1983. An agreement by the applicant Thakur Prasad about the joint family property cannot be termed 'legal' to be enforced by the decree of the Court. In almost similar circumstances, the Andhra Pradesh High Court in A. V. Narasimha Raju v. K. Yellamanda, AIR 1960 Andh Pra 32 has held that where agreement affected the properties of other co-sharers, it was 'unlawful' within the meaning of section 23 of the Contract Act and no decree on the basis of a part of such agreement could be passed under Order 23, Rule 3 C.P.C. This also is the gravitational pull of this Court's decision dated 4-4-1983. It must, therefore, be held that the compromise, if any, was not 'lawful' and, hence, no decree could be passed. Clearly, therefore, the bar under Section 96(3) C.P.C. remains inoperative in the present case.

19. Consequently, neither the law on the subject nor the facts of this case, justify entertaining the present revision, as the impugned decree is appealable. 1, therefore, agree with the order proposed by my learned brother.


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