L. Prithi Raj v. Pt. Ballabh Das — 1968 DIGILAW 5 (ALL)

ORDER J.N. Takru, J. - This is a Defendant's appeal against the judgment and order of the learned Civil Judge, Mathura whereby he set aside in appeal, the judgment and decree of a learned Munsif of that place and directed the recording of the compromise dated 7-2-1963. 2. The facts giving rise to this appeal are short and simple. The Plaintiff-Respondent brought a suit against the Defendant-Appellant for the recovery of a certain sum of money on the basis of a pronote. The Defendant-Appellant was served with the notice of the suit but he did not appear on the due date nor did he file any written statement. Thereupon the case was ordered to be listed for the recording of the Plaintiff-Respondent's evidence on 7-2-1963. On that date the Plaintiff-Respondent was examined exparte and judgment was reserved. On 27-2-1963 the learned Munsif dismissed the suit exparte. The Plaintiff Respondent appealed against the exparte decree to the lower appellate court and during its pendency there he moved an application alleging that the parties had compromised their dispute on 7-2-1963 and praying that a decree be passed in terms of that compromise Under Order 23, Rule 3 Code of Civil Procedure. The Defendant-Appellant opposed that application and denied the compromise in question. Thereupon the lower appellate court recorded the evidence of the parties and accepting that of the Plaintiff-Respondent passed the order under appeal. 3. On behalf of the Defendant-Appellant a number of contentions were advanced in support of this appeal, but as one of them is alone sufficient for its disposal, I shall refer to that contention only. According to the Appellant's Learned Counsel, while it was true that an appeal was a continuation of the suit and the appellate court's powers are the same as those of the trial court, nevertheless, as after the passing of the exparte decree, the trial court could not record the compromise without first setting aside the exparte decree, the lower appellate court also could not record the compromise without first set ting aside that decree. So far as the trial court's powers to set aside the exparte decree were concerned he contended, that the said court could do so only if a case for reviewing it Under Order 47, Rule 1 CPC or setting it aside on the ground of fraud etc. So far as the trial court's powers to set aside the exparte decree were concerned he contended, that the said court could do so only if a case for reviewing it Under Order 47, Rule 1 CPC or setting it aside on the ground of fraud etc. was made out and as neither of those remedies were, or could be, availed of, in the instant case, neither that court nor the appellate court could record the compromise in question. After hearing the Learned Counsel for the parties, I am satisfied that this contention is well-founded. 4. Now the jurisdiction to pass a decree in terms of a lawful agreement or compromise between the parties is given to the Court Under Order 23 Rule 3 Code of Civil Procedure. That rule provides that where it is proved to the satisfaction of the court that the suit has been adjusted wholly or in part by a lawful agreement shall order such agreement or compromise, to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit. A bare reading of this provision shows that the court's jurisdiction to act under it is confined to the period, the suit or the appeal in which the compromise is filed is pending and has not been disposed of by the passing of a decree, for otherwise it would not be correct to say that the compromise was filed in the suit or the appeal. It Follows, therefore, that if the compromise sought to be recorded is filed after the passing of the decree, then it is absolutely essential to get that decree set aside and the suit or appeal revived before the court can exercise its jurisdiction Under Order 23, Rule 3 Code of Civil Procedure. 5. Now it is a legal truism that the only jurisdiction which a court, original or appellate, possesses in respect of a suit or appeal after it has passed a decree in it, is that of review Under Order 47, Rule 1, Code of Civil Procedure. That power is however circumscribed by the conditions laid down in that Order. As the Plaintiff-opposite party did not invoke the trial court's jurisdiction under that provision of law the said court could not set aside the exparte decree and revive the suit thereunder. That power is however circumscribed by the conditions laid down in that Order. As the Plaintiff-opposite party did not invoke the trial court's jurisdiction under that provision of law the said court could not set aside the exparte decree and revive the suit thereunder. The only other way in which the Plaintiff-opposite parties could have got the exparte decree set aside was by alleging and proving that it was obtained by fraud etc., but that remedy wag also not availed of in this case. It follows, therefore, that if, in the circumstances of the present case, the trial court could not set aside its exparte decree on the grounds mentioned above the lower appellate court also could not set aside that decree on those grounds even on the view that an appeal is a continuation of a suit, though it could do so on merits. This is not to say that if a fresh compromise is entered into during the pendency of the appeal in the lower appellate court, that court cannot order the appeal to be adjusted in terms thereof but the compromise has to be a fresh one adjusting the appeal and not a compromise which allegedly sought to adjust the suit, in which a decree had been passed. 6. On behalf of the Plaintiff Respondent reliance was placed on Section 99 CPC and it was argued that as the matter was of a petty nature and there was no error, defect or irregularity in the proceedings affecting the merits of the case the decree passed by the lower appellate court should not be reversed. This argument is not tenable for the simple reason that if the appellate court had no jurisdiction to pass a decree in term of the compromise the fact that the matter was of a petty nature and there was no other defect affecting the merits of the case, would not confer any sanctity on its decree. A decree passed by a court, having no jurisdiction to pass it however otherwise justified is not worth the paper it is written on. 7. Although there is no direct authority on the point falling for consideration in this case, some assistance can be derived from the decisions to which I shall now refer. The first case is of Nistarini Dasi v. Mahendra Nath Kar AIR 1919 Cal 993. 7. Although there is no direct authority on the point falling for consideration in this case, some assistance can be derived from the decisions to which I shall now refer. The first case is of Nistarini Dasi v. Mahendra Nath Kar AIR 1919 Cal 993. In that case the Defendant-instituted a suit to set aside an exparte decree on the ground of fraud. The specific fraud alleged was to the effect that the Plaintiff who had agreed on receipt of Rs. 44/- from the Defendants to withdraw from the suit did not bring that agreement to the notice of the court and took advantage of the Defendant's absence to secure an exparte decree against him. The court found the allegation established, whereupon it set aside the exparte decree thereafter passed a decree in terms of the compromise. The court held that as the setting aside of the exparte decree revived the original suit and the parties were restored to the position they occupied on the day the exparte decree was passed, the agreement between the parties under which the Plaintiff had to withdraw from the suit on receipt of Rs. 44/- could be given effect to Under Order 23 Rule 3 Code of Civil Procedure. Although the facts of this case are different from those of the instant case, it will be noticed that it supports my view that the setting aside of the exparte decree is an essential prerequisite to the recording of the compromise entered into prior to the passing of that decree. 8. The second case is of Firm Ramachandra Mathuralal Vs. Kalu Singh Nathraj, AIR 1961 MP 245 in which it was held that: Once a compromise is arrived at during the pendency of a suit the Plaintiff should not proceed with the suit. He should ask the court to record the compromise and satisfy it that the agreement was genuine. If he, however, changes his mind and the opposite party also acquiesces the compromise is washed out and the suit should proceed on merits but he cannot later on when his hopes do not materialise take to the compromise. His conduct amounts to a repudiation of the compromise. It is no less a repudiation because it is tacit and disentitles him at a later stage to ask that the compromise should be recorded. 9. His conduct amounts to a repudiation of the compromise. It is no less a repudiation because it is tacit and disentitles him at a later stage to ask that the compromise should be recorded. 9. It will be noticed that in this case also the compromise was arrived at between the parties before the suit came up for hearing, but the Plaintiff instead of inviting the attention of the court to the compromise and seeking a decree on the basis of it kept quiet and it was only when he found that matters were not going on very well with him that he tiled the compromise and asked for a decree on it basis. His prayer was rejected on the ground that as his conduct amounted to repudiation of the compromise he could not be allowed to fall back upon it. The instant case is stronger than the case cited above as in it the compromise was filed not in the trial court, but in the appellate court and no mention of the compromise was made even in the grounds of appeal. 10. The third case to which reference has to be made is that of Mst. Mulia v. Pratap AIR 1924 Nag. 325. In that case it was held that: Where the Appellant intimated through their pleader that the appeal was compromised but failed to appear to put in the compromise or to ask for a decree in terms of the compromise the appeal was liable to be dismissed for want of prosecution and that the Appellant could get no help from the court if subsequently the opposite party resiled from the compromise. 11. The decision in this case like that in Firm Ram Chandra Mathura Lal (2) is based upon principles of equity and fair play, which by themselves were strong grounds for refusing to record the compromise in this case also. Thus for the reasons given above I am satisfied that the lower appellate court was in error both on legal as well as equitable grounds in recording the compromise. The result, therefore, is that its judgment and order cannot be sustained and are set aside. The appeal is accordingly allowed and the case remanded to the lower appellate court with the direction that it shall reregister it at its original number, and after giving notice to the parties, proceed to dispose of it on merits. The result, therefore, is that its judgment and order cannot be sustained and are set aside. The appeal is accordingly allowed and the case remanded to the lower appellate court with the direction that it shall reregister it at its original number, and after giving notice to the parties, proceed to dispose of it on merits. The parties are however left to bear their costs of this appeal.