Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 886 (ORI)

Sushila Panda v. Lokanath Panda

2014-12-18

B.K.NAYAK

body2014
ORDER Heard learned counsel for the petitioners. In spite of service of notice, the sole opposite party has not entered appearance. Order dated 03.01.2008 passed by the Civil Judge (Senior Division), Sonepur in C.S. NO.102 of 2006 rejecting the joint petition for compromise filed by the parties, has been assailed in this revision. The opposite party as plaintiff filed the suit for declaration that the registered Will dated 12.02.1993 executed by Brundabati, Wife of Bhimsen Panda in respect of the suit property is illegal, inoperative and a nullity. Admittedly the suit property originally belonged to Bhimsen, the husband of Brundabati Panda. After the death of Bhimsen, the properties were recorded in the name of Brundabati in the consolidation record of rights. Sahadev Panda is the deceased brother of Bhimsen. The plaintiff and Defendant Nos.3 & 4 are the natural born children of Sahadev. Defendant Nos.1 and 2 are the wives of Santosh and Krushna, who are also the sons of Sahadev. Plaintiff claimed the property as the adopted son of Bhimsen and Brundabati and challenged the genuineness of the Will executed by Brundabati in favour of the defendants. In their written statement the defendants denied the adoption of plaintiff by Bhimsen and Brundabati and also claimed that the Will executed in their favour by Brundabati was valid and genuine. During the course of trial of the suit, the parties entered into a settlement and filed a compromise petition before the trial Court in which different portions of the suit property were distributed amongst the parties. The trial Court has, however, rejected the petition holding that since the main issue in the suit is about the genuineness of the alleged Will and adoption of the plaintiff and in the event both the issues are answered in the negative, the suit properties are to be succeeded by all the legal heirs, who are children of Bhimsen's brother including Santosh and Krushna, who have not been impleaded as parties to the suit and in their absence the compromise can not be allowed since they would not be bound by the compromise. Order 23 Rule-3 which provides for compromise of the suit, runs as under: "3. Order 23 Rule-3 which provides for compromise of the suit, runs 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.] [Explanation-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.] The language of Rule-3 of Order 23 makes it clear that the compromise would be only confined to the parties of the suit and it does not bind persons, who are not parties. The Court is bound to record the compromise if the agreement or compromise is lawful. A suit can also be partially compromised between some of the parties or with relation to some of the subject-matter. The explanation to Rule-3 makes it clear that agreement or compromise which was void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the rule. Therefore, any agreement or transaction, which is declared to be void or voidable or which is barred under any statute shall also be termed as not lawful. While considering a petition for compromise the Court is also see as to whether the agreement of compromise or adjustment is lawful or not. Therefore, any agreement or transaction, which is declared to be void or voidable or which is barred under any statute shall also be termed as not lawful. While considering a petition for compromise the Court is also see as to whether the agreement of compromise or adjustment is lawful or not. Persons, who are not parties to the suit, are not bound by the compromise and if they are affected or aggrieved by any compromise decree passed by the Court, it is open to them to challenge the same in a separate suit, as compromise under Order 23 Rule-3 remains confined only to the parties to the compromise. In such view of the matter, the observation of the Court below that the compromise cannot be allowed for the reason that Santosh and Krushna were not added as parties to the suit is illegal and unsustainable. Therefore, the impugned order is set aside and the revision is allowed and the matter is remitted back to the trial Court to reconsider the compromise application only to find out whether the terms of compromise are lawful or not. Revision allowed.