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2003 DIGILAW 498 (AP)

Ragi Shakuntala v. Chandrapalkala Sadanandam

2003-03-28

C.Y.SOMAYAJULU

body2003
C. Y. SOMAYAJULU, J. ( 1 ) THIS petition is filed by a third party to the appeal to amend the compromise decree dated 24-7-2001 passed in A. S. No. 396/95 by deleting paragraph No. 4 therefrom. ( 2 ) AGGRIEVED by the decree and judgment in O. S. No. 47/1991 on the file of the subordinate Judge, Karimnagar dated 11-12-1991, a suit filed for partition of the plaint schedule property in two equal shares, 1st respondent filed A. S. No. 386 of 1995 against the 2nd respondent. During the pendency of the said appeal both respondents 1 and 2 filed CMP no. 14375/2001 under Rule 3 of Order 23 cpc to record the compromise entered into by them. On 24-7-2001, the said compromise was recorded by this Court and appeal was disposed of in terms of the said compromise. Long prior to 24-7-2001 petitioner filed c. M. P. NO. 718/97 to implead her as party to the appeal, alleging that she purchased a plot admeasuring 1018 sq. yards in Plot no. 37 in S. No. 1297 and 1298 of Christian colony of Karimnagar for valid consideration under a registered sale deed dated 16-7-1975 executed by the appellant (1st respondent) in her favour and has been enjoying the same from the time of purchase by paying taxes to the municipality. The present petition is filed by the petitioner alleging that respondents 1 and 2, with a view to jeopardize her rights, collusively and without bringing to the notice of the Court about the pendency of CMP no. 718/97 filed by her, got the compromise recorded. It is her contention that she is obliged to file this petition since respondents 1 and 2 are utilizing the averments in para 4 of the compromise decree to defeat her rights, and so para 4 of the compromise decree needs to be deleted. ( 3 ) SINCE the petition was filed after giving notice to the counsel for respondents, the same was adjourned from 11-3-2003 to 18-3-2003 for counters of respondents. Since respondents did not file their counters on 18-3-2003, the petition was posted to 27-3-2003 for hearing. Today, when the matter is taken up for hearing, counter-affidavit of 2nd respondent is filed, without seeking leave of the Court to permit him to file his counter-affidavit. Needless to say that in such circumstances counter affidavit of 2nd respondent cannot be taken into consideration. Today, when the matter is taken up for hearing, counter-affidavit of 2nd respondent is filed, without seeking leave of the Court to permit him to file his counter-affidavit. Needless to say that in such circumstances counter affidavit of 2nd respondent cannot be taken into consideration. But ignoring the technicality of the 2nd respondent not filing a petition seeking permission to file his counter affidavit, I would take into consideration the counter affidavit of 2nd respondent for deciding this petition. ( 4 ) THE main contention of the learned counsel for the petitioner is that respondents, who entered into a compromise with a view to cause prejudice to the persons who are not made parties to the suit or appeal got drafted the compromise petition with recitals in their favour and in such a manner as to cause prejudice to third parties, and for that reason only, this Court while recording compromise, observing that the averments in paragraph No. 6 of the compromise relate to persons who are not made parties to the proceedings, declined to record the terms contained in para 6 of the compromise petition, and respondents, very cleverly, having mentioned the name of the petitioner in paragraph No. 4 of the compromise petition, failed to mention her name in paragraph No. 6 of the compromise petition, and suppressed the factum of pendency of the CMP No. 718 of 1997, at the time of recording of compromise. It is his contention that respondents 1 and 2, on the basis that the compromise decree passed by the High court is binding on all the persons, have been using the said decree, especially para 4 of the compromise decree, as a weapon against the petitioner in various fora and so petitioner is obliged to file this petition to include the name of the petitioner also in paragraph No. 6 of the compromise petition, to make it clear that the compromise or compromise decree would not bind the petitioner also. ( 5 ) THERE is no representation on behalf of the 1st respondent. ( 6 ) THE contention of the learned counsel for the 2nd respondent is that since the petitioner is a third party to the suit and the appeal, question of her filing a petition to amend the compromise decree entered into between respondents 1 and 2 does not arise, and so the petition deserves to be dismissed in limine. ( 6 ) THE contention of the learned counsel for the 2nd respondent is that since the petitioner is a third party to the suit and the appeal, question of her filing a petition to amend the compromise decree entered into between respondents 1 and 2 does not arise, and so the petition deserves to be dismissed in limine. It is his contention that 2nd respondent filed the suit against the 1st respondent seeking partition of the joint properties and after contest by 1st respondent a preliminary decree for partition was passed by the trial Court on 11-12-1991, and aggrieved by that decree 1st respondent, who brought into existence some collusive documents to defraud the 2nd respondent, filed the appeal. In the appeal A. S. No. 386/95, at the intervention of the elders, both respondents 1 and 2 entered into a compromise, and divided the properties among themselves and this court recorded the compromise and passed a decree as per the terms of compromise, and so the same is binding on the parties. It is his contention that since the language employed in Rule 3 of Order 23 CPC is in the nature of a mandate to the Court to record the compromise as entered into by the parties, which is evident by the use of the word shall , petitioner, who is a third party to the proceedings and who is not a party to the compromise, cannot seek amendment to the compromise or com promise decree. He also made a reference to the various proceedings pending between the parties to this petition in various fora. ( 7 ) RESPONDENTS 1 and 2 admittedly are the two and only sharers of the property covered by the suit, out of which, this appeal arose. The fact that there is a sale deed in favour of the petitioner, executed by 1st respondent in 1975, in respect of a part of the property covered by the suit, is not denied or disputed. Admittedly, the suit for partition out of which the appeal, in which this petition is filed, was instituted in 1991, without making the petitioner a party thereto. It is well known that all persons who have a right or interest in the property, in respect of which the suit for partition is filed, are proper, if not necessary parties to the suit. It is well known that all persons who have a right or interest in the property, in respect of which the suit for partition is filed, are proper, if not necessary parties to the suit. Any decree passed in a suit for partition, without making the person who has a share or interest in the property covered by the suit would not bind such party. When the petitioner has a registered sale deed of the year 1975 in her favour, in respect of a part of the plaint schedule property, for her to be bound by the decree to be passed in that suit, she should have been made a party to the suit. It is well known that title to the property gets transferred on registration of the sale deed. So, till the sale deed is set aside, or is declared null and void by the Court in a proceeding to which the petitioner also is a party such sale would be binding on the vendor and his share in the property sold. Merely because an executant of a sale deed unilaterally declares, or holds out, that the sale deed executed by him is nominal, it would not become a nominal sale, till the purchaser agrees for cancellation of the sale or reconveys the property, by way of registered cancellation or conveyance deed. Therefore, it is needless to mention that neither the compromise, nor the decree passed in pursuance of the compromise, in the appeal, would be binding on the petitioner herein, because she is not made a party to the suit or appeal. It is also very well known that a compromise between the parties to a suit or appeal is but a contract or agreement between them, with the seal of the Court superadded and is not an adjudication by the Court on merits. If by virtue of the compromise between them, parties to a suit come to a clandestine agreement to defraud persons who are not parties to the suit, that compromise decree would be of no help to achieve their object. Court while recording a compromise does not adjudicate the dispute between the parties, but merely records what the parties had agreed, provided the agreement between them is lawful. Court while recording a compromise does not adjudicate the dispute between the parties, but merely records what the parties had agreed, provided the agreement between them is lawful. A person who is not a party to the suit is not bound by the terms of the compromise or the compromise decree and so he can always say that compromise decree is not binding on him. ( 8 ) IN this case the compromise is between the respondents inter se only. Since the petitioner is not a party to the suit or appeal or compromise, the compromise decree is not binding on her. In as much as petitioner is not bound by the terms of the compromise, and since she is also not a party to the suit, she cannot seek amendment of the compromise petition or compromise decree. If petitioner feels aggrieved by the compromise or compromise decree she has to seek her remedy in appropriate forum, but not by filing a petition seeking amendment to the compromise decree. ( 9 ) WITH the above observation, the CMP is disposed of. No costs.