1. Mr.Jamal Mohamed, learned counsel for the petitioners says that he is authorised to sign on behalf Chandran, Kuppammal, Pichandiammal and Raniammal and they have not signed in the compromise memo. The signatures of Rajalakshmi Ammal, the first respondent, Venkatesan, 2nd petitioner and the left thumb impression of Krishna Naidu, the 1st petitioner are found. As already seen, the signatures of petitions 3 to 6 namely, Chandran, Kuppammal, Pichandiammal and Raniammal are not found. They have not signed, Mr.Jamal Mohamed, learned counsel submits that under Order 23, Rule 3, this Court for sufficient reasons can record the compromise if the learned counsel for the petitions has signed on behalf of the petitioners. This Court is now bent upon the presence of all the parties and the signatures of all the parties in the joint memo especially when it is now disputed by one Bakthavatchalal Naidu, the second respondent in C.R.P.No.2334/80 that he had purchased the property in question in Court auction for Rs.32,000/-. Rajalakshmi Ammal who has signed the joint memo submits that her property worth about Rs.21,000/-has been alienated. But these are all matters to be decided in the final disposal of these two civil revisions petitions which have now been brought on record by setting aside the order of dismissal for default with costs.
2. Now let me just observe as to what is the scope of Order 23, Rule 3, C.P.C. with regard to memo compromise, Order 23, Rule 3, reads as follows :-
'Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, (in writing and signed by the parties) or where are 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.
Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at the Court shall decide the question; but no adjournment shall be granted for 'the purpose of deciding the question unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation : An agreement or compromise which is voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule'.
In the rule relating to compromise of the suit, it is embedded in order 23, Rule 3, after the amendment of the rule by the Amending Act of 1976, a decree can be passed in accordance with the agreement, compromise or satisfaction so far as it relates to the parties (underlining is mine) to the suit whether or not the subject matter of agreement etc., is the same as the subject matter of the suit.
3. Under the rule as it stood prior to its amendment, a decree could be passed only so far as the compromise relates to the suit. But a compromise which includes matters extraneous to the suit was not unlawful (vide Harak Chandas v. Hyderabad State Bank : AIR1960AP56 Mst . Hulasi v. Mohanlal ILR 1960 Raj 94, Harichand v. Mahimal AIR 1917 Lah 282; Smt. Susila Devi V. Girdharilal ILR 1972 1 Del 867 and could not be rejected in its entirety by the Court. (vide Harak Chandas v. Hyderabad State bank : AIR1960AP56 . Where a compromise comprised mater unconnected with the suit, it was held that the proper course for the Court was to recite the compromise as a whole in its decree or in the form of a schedule to the decree for purpose of reference but to restrict the operative part of the decree to those terms of the compromise which related to the suit. In such a case the decree would be executable only in respect of matters that related to the suit. (vide Munshi Ram v. Banwarilal : AIR1962SC903 : Hemanta Kumari v. Zamindari Co. AIR 1919 PC 79, Chandrasekar v. Ukiabati : AIR1977Ori82 ; Bimal Kumar V. Amiya Gopal : AIR1975Cal387 . The remaining terms of the compromise, i.e., those which were not incorporated in the operative part of the decree, might be enforced by means of a separate suit. (Vide Haran Chandas v. Hyderabad State Bank : AIR1960AP56 and Balesar Misir v. Tekesar Misir : AIR1939All454 .
4. Where a compromise which included matters extraneous to the suit has been entered into on condition that it should be given effect to as a whole, the Court should not dismiss the suit, (vide Muthu Vijaya Raghumatha Udayar v. Thandavaraya Tambiran 1899 ILR 22 Mad 214) but should permit the parties to suitably enlarge the scope of the suit by means of amendment of pleadings, so as to enable the compromise to be passed into a decree (vide Mohillah v. Imami ILR 1887 All 229.
5. A will was made leaving certain properties to a person. Some of the properties were at P and others were at L. A suit was brought at P questioning the will and seeking a declaration of title with reference to the properties at P. The suit was compromised. Under the compromise and the decree thereon, the rights of the parties both as to the properties at P as well as those at L were determined. It was held that the Court at P had jurisdiction to pass the decree under S. 19 of the Code. It was also held that though it would have been amended so as to include the properties at L the fact that the plaint was not amended did not make the decree one without jurisdiction. See also the case reported in S.P.Gupta v. District Judge, Aligarh : AIR1976All319
6. As to whether, where a decree erroneously includes in the operative part of it, terms extraneous to the suit, the executing Court could refuse to execute the decree with respect to those terms and whether a separate suit lies in respect of them (sic).
7. In order to apply the rule the compromise must be between the parties to the litigation. A compromise to which some of the parties to a suit alone are parties is not necessarily invalid. (vide Shankar Bharati v. Narasimha Bharathi and Sabitri Thakurina v. Mrs. F.A.Savi : AIR1933Pat306 , though on good cause being shown by any of the other parties, the Court has a discretion to reject such a compromise.
Thus, where a partial compromise would be prejudicial to the interests of the parties not joining it, it cannot be recognised. (vide Rani Bai v. Yadhunandan : 3SCR789 . Similarly, where the interests of the several parties to a suit are inseparable, it is not open to some of them alone to compromise the matter (vide Brojeswar v. Syma Charan : AIR1919Cal727 . Thus, a suit for partition cannot be compromised by some of the parties alone to it (vide Mathura Singh v. Deoharai Singh : AIR1928Mad594 .
8. A compromise between some parties alone cannot affect the position of the other parties to the suit. They are neither bound by it nor are en-entitled to enforce it vide K.Panduranga v. State of Mysore IR 1965 MYS 244; (Gain Chandra v. Prem Narian ; Durlav Monal v. Hem Chandra Mukerjee AIR 1926 Cal 188. But where certain defendants were ex prate decree against them in the terms of the compromise that had been entered into between the other defendants and the plaintiff, it was held that the decree was not a nullity as against the ex prate defendants (vide Sheo Behari Lal v. Makrand Singh AIR 1935 Oudh 358.
A party is not bound by an unauthorised compromise entered into by his agent (vide, Monomhini Guha v. Banga Chandra Das ILR 1904 Cal 357 and M.D.Rashid v. Rahmatullah AIR 1914 lah 112. But a person who is suing or is being sued in a representative capacity can enter into a bone fide compromise and thereby bind the persons represented (Vide Subramanian v. Raja Rajeswar AIR 1915 PC 33; P.R.Nallathambi v. V.RAghavan : AIR1973Mad25 .
9-10. In Taxmann's Code of Civil Procedure, 1980 Edition at page 190, it is well stated 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 or compromise in writing and signed by parties, (underlining is mine)* or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter suit the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance there with 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,. Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decided the question, unless the Court, for reasons to be recorded, thinks fit to grant adjournment. Explanation to Order 23, Rule 4 Provides that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 ( 9 of 1872), shall not be deemed to be lawful within the meaning of this rule. No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Further, it is provided as follows :
'(1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings : and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.
(2) Before granting such leave the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.
Explanation : In this rule, 'representative suit' means :-
(a) a suit under Section 91 or S. 92,
(b) a suit under Rule 8 of Order 1,
(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family,
(d) any other suit in which the decree passed may by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.
11. In the instant case, it is relevant to not that Bakthavatchala Naidu, who is the second respondent in C.R.P.No.2334 of 1980, and who is present in Court today vehemently contends that he has parted with a sum of Rs.32,000/-in cash as sale consideration in Court auction in which the property in question has been purchased by him and as such the said sale cannot be the subject matter of any dispute especially the said Court auction sale had been confirmed. The lady Rajalakshmi Ammal who has signed in the other memo in both the C.R.P.Nos 2334/80 and 3261 of 1980 now comes forward to put forward her grievance that her property has been alienated. These are all matters going to the root of the case which had reached the stage of civil revision petitions. Anyhow, this Court had set aside the order, namely, dismissal order for default and both the Civil Revision Petitions Nos. 2334 of 1980 and 3261 of 1980 had been restored to file.
12. Under these circumstance, both the memos filed in C.R.P.Nos 2334 and 3261 of 1980 cannot be recorded by this Court is not satisfied with the representation by the counsel appearing for the petitioners 3 to 6, namely, Chandran, Kuppu Ammal, Pitchandi Ammal and Raniammal because such a representation is not one coming within the purview of the provisions under Order 23, Rule 3, C.P.C. There must be a specific and deliberate reason offered for these petitioners 3 to 6 for their being absent in Court and then only, the Court can at all entertain any representation on their behalf. It is submitted by the learned counsel for the petitioners that these petitioners 3 to 6 are not available to the occasion and they are in Calcutta and Bangalore. It is not the proper reason for their absence especially when compromise memos are sought to be recorded.
13. Under these circumstances both these compromise memos are rejected.
14. Order accordingly.