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2014 DIGILAW 252 (PAT)

Awadhesh Prasad Sharma v. Prahlad Prasad Sharma

2014-02-13

AMARESH KUMAR LAL

body2014
JUDGMENT : The plaintiff-appellant has preferred this appeal under Order 43 1-A (2) of the Code of Civil Procedure against the judgment and preliminary decree dated 13.6.2006 and 1.7.2006 passed by the learned Sub-Judge-I, Katihar, in Title Partition Suit No. 10 of 1991 by which the suit has been decreed in terms of the compromise. 2. Learned counsel for the appellant submits that two plaintiffs, namely, Prahlad Prasad Sharma and Rajesh Prasad Sharma from the plaintiffs’ side and two defendants, namely, Jagdish Prasad Sharma and Jai Prakash Sharma from the defendants’ side signed on the compromise petition which has been accepted by the court. Neither other defendants nor the plaintiff-appellant have made compromise in this case. As such, the compromise petition and the decree on the basis of compromise are not valid in view of Order 23 Rule 3 of the Code of Civil Procedure. He has also raised grievance that the valuable lands have been taken by the other plaintiffs and the defendants party to the compromise petition and the appellant has not been allotted the proper land equal to other plaintiffs and defendants who are parties to the compromise petition. 3. Mr. Awadhesh Mishra, learned counsel for the respondent nos. 1 to 10, submits that the plaintiff-appellant has been lingering the suit since a long time and at last the compromise has been made. He has also been given the valuable land and thereafter the land has also been demarcated by a boundary wall. He has also submitted that Jai Prakash Sharma was authorized by other defendants who are not present to make signature in the compromise petition and thereafter he has put his signature and on behalf of the plaintiff-appellant Mr. R.K. Sinha, advocate, has put his signature. As such, it cannot be said that the plaintiff-appellant was not a party to the compromise petition. 4. After hearing the learned counsel for the parties and on perusal of the compromise petition, it appears that plaintiffs, namely, Rajesh Prasad Sharma and Prahlad Prasad Sharma have signed the compromise petition on 7.6.2006 and on behalf of defendants, Jai Prakash Sharma has put his signature and Jagdish Prasad Sharma has also put his signature below the signature of Jai Prakash Sharma on 7.6.2006 and thereafter R. N. Sinha has put his signature as an advocate on behalf of the plaintiff. On the same day Ekrarnama has also been filed bearing the signatures of Prahlad Prasad Sharma and Rajesh Prasad Sharma as plaintiffs and Jagdish Prasad Sharma and Jai Prakash Sharma on behalf of other defendants and their lawyers have also signed on the Ekrarnama on 7.6.2006. There is provision for making compromise under Order 23 Rule 3 of the Code of Civil Procedure. The Court has to be satisfied that the suit has been adjusted wholly or in part by any lawful agreement signed by the parties. It is better to quote the Order 23 Rule 3 of the Code of Civil Procedure which is extracted as under : 3. “Compromise of suit – 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 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] : [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.] ” 5. It is apparent from the provisions that the parties to the suit are necessary signatories that is in other words there is provision that the compromise petition must be in writing and signed by the parties. It is admitted fact that the appellant has not signed on the compromise petition and out of six defendants, only two have made signatures on the compromise petition. 6. Considering the facts and circumstances, it appears that the compromise petition is not in lawful manner which has been disputed by the plaintiff-appellant. In view of the aforesaid mandate of law, the impugned order cannot be sustained and it is set aside. 7. 6. Considering the facts and circumstances, it appears that the compromise petition is not in lawful manner which has been disputed by the plaintiff-appellant. In view of the aforesaid mandate of law, the impugned order cannot be sustained and it is set aside. 7. Since all the parties have appeared and it is agreed upon that they want an early disposal of the aforesaid Title Partition Suit No. 10 of 1991, the parties will appear before the learned Sub-Judge-I, Katihar, on 24th March 2014 and the court will proceed with the case expeditiously. Learned trial court will expedite the case preferably within a period of six months from the date of their appearance. 8. In the result, the appeal is allowed.