R.N. Misra, J.
1. This application by defendants 1 and 2 is directed against the order dated 28-2-1979 by which the learned Subordinate Judge of Anandapur refused to record a compromise in Title Suit No. 8 of 1977 pending before him and directed parties to come ready for trial of the suit.
2. Title Suit No. 8 of 1977 was one for partition. Defendants filed their written statement denying plaintiffs' claim of a share in the property. On 18-11-77, plaintiffs entered into a compromise with defendants 1 and 2 as also defendant No. 8 (opposite party No. 3). It may be stated that the. remaining defendants were strainger-purchasers. On the very day a petition of compromise was filed asking the Court to record the same. According to the compromise, plaintiffs had no share in the property but defendants agreed to give them 5 decimals out of the disputed property and 97 decimals of land not being a part of the suit property. It was also stipulated that the third defendant would receive a sum of Rs. 1,000/- on the basis that he has no share in the property. The learned Subordinate Judge directed the plaintiffs to amend the plaint and incorporate the 97 decimals of land covered by the compromise petition in the hotchpot. As plaintiffs did not apply for amendment by the date fixed, on 19-1-1978, the learned Subordinate Judge rejected the petition of compromise. These petitioners came before this Court in Civil Revn. No. 98 of 1978, (reported in AIR 1980 Orissa 107). On 3-1-1979 this Court allowed the Civil Revision and held :--
'The court below should not have rejected the compromise petition merely because the compromise petition included matters which did not relate to the suit. In such a case, the proper course for the court was to recite the compromise as a whole in the decree or in the form of a schedude to the decree for the purposes of reference, but to restrict the operative portion of the decree to the subject-mattei which relates to the suit. This view gets support from the decisions reported in AIR 1975 Cal 387 (Bimal Kumar v. Amiya Gopal); AIR 1932 Bom 466 (Vishnu v. Ramachandra) and AIR 1977 Orissa 82, (Chandrasekhar v. Ukiabati) ...... Thatbeing the law on the point, the court below should not have rejected the compromise petition in its entirety but should have acted as stated above. Accordingly,the impugned order dated 19-1-1978 is set aside, and the court below is directed to deal with the compromise petition in the manner as stated above, and to dispose of the suit in accordance with law.'
The learned Subordinate Judge had fixed 28-2-1979 for considering the petition of compromise. An objection was filed on behalf of the plaintiffs on that day pointing out that the five decimals of land allotted to them under the compromise was in possession of a stranger and plaintiffs would, therefore, be not in a position to get the same. It was further pointed out that out of the 97 decimals of land proposed to be given in terms of para. 4 of the petition of compromise, 24 decimals had been acquired for the Salandi Canal and the compensation had already been taken by the defendants. So far as the 48 decimals of land was concerned, the same formed part of a gift in favour of plaintiffs' mother and alter her plaintiffs were already in possession in their own right Plaintiffs, therefore, wanted that the compromise should not be given effect to as it was likely to give rise to further complications in future. The learned Subordinate Judge passed the 'following order :--
'Both parties file haziras, Plaintiffs are filing a fresh vakalatnama in favour of Sri R.N. Panda. Advocate and pray in a petition to reject the compromise petition, as they are not willing to compromise on grounds stated therein. Hence, the compromise petition stands rejected. Call on 21-3-1979 for hearing. Both parties must come ready for hearing on the date fixed.'
3. Order 23, Rule 3 of the Civil P. C. provides :--
'Where it is proved to the satisfaction of the Court that the suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, 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. compromise or satisfaction is the same as the subject-matter of the suit:
The underlined words have been inserted by amendment in 1976. If a party to a suit alleges that a suit has been adjusted by a lawful agreement and applies to the court to record an agreement and to pass a decree in accordance therewith but the other party to the suit denies the agreement or wishes to resile from it, the question arises whether the court has power in the one case to decide if the agreement was effected and to pass a decree accordingly; and in the other case to pass a decree in spite of the other party's reluctance. The Bombay, Madras and Calcutta High Courts had taken the view that the court had jurisdiction to do so, (See Goculdas Bulabdas Mfg. Co. Ltd. v. James Scott, (1892) ILR 16 Bom 202; Appasami Nayakan v. Varadachari, (1896) ILR 19 Mad 419; Brojodurlabh Sinha v. Ramanath Ghose, (1897) ILR 24 Cal 908 (FB) while the Allahabad High Court had taken the view that unless parties to the compromise appeared before the court and accepted the terms, at the moment of moving the court, the Court had no jurisdiction to record the compromise (See Bandhu Bhagat v. Shah Muhammad Taqiu, (1892) ILR 14 All 350. These were decisions rendered prior to the Code of 1908. Rule 3 of Order 23 of the Code of 1908 accepted the view of the Presidency High Courts.
The words 'where it is proved to thesatisfaction of the court that a suit has been adjusted wholly or in part' clearly show that the court has power under this rule, where an agreement or compromise is denied, to decide whether as a fact the alleged agreement of compromise was made and if it is satisfied that it was made, to record it. (see Jai Govind Singh v. Bagal Lal Singh, AIR 1950 Pat 445). The observations of the Privy Council in the case of Sourendra Nath Mitra v. Tarubala Dasi, AIR 1930 PC 158, also lend support to this view. If there had been a lawful compromise, the objections raised by the plaintiffs in their petition of 28th Feb. 1979, did not authorise the court to refuse to record the compromise. 'Besides, the compromise was also not disputed by the third defendant who had received Rs. 1,000/- in lieu of any claim to a share in the property. The learned Trial Judge obivously missed the point and exercised jurisdiction vested in him contrary to law.
4. I allow the revision application, vacate the impugned order and direct that the petition of compromise be recorded. Grievance of the plaintiffs, if any, must be left to be decided in a separate action. As there has been no appearance for theplaintiffs-opposite parties, there would be no direction for costs.