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2015 DIGILAW 3522 (ALL)

Surya Dutt v. Suresh Chandra

2015-11-06

PRAMOD KUMAR SRIVASTAVA

body2015
JUDGMENT Pramod Kumar Srivastava,J. Heard learned counsel for the parties on admission of second appeal and perused the records. 2. Original suit no. 763 of 2011 (Surya Dutt Vs. Suresh Chandra) was filed by plaintiff (present appellant) for the relief of permanent injunction. In said case, defendant (present respondent) had filed counter claim. Additional Civil Judge, (J.D.) Court No. 5 Allahabad had passed the judgement dated 11.10.2013 in original suit after affording opportunity to the parties. By this judgment, trial court had dismissed the suit of plaintiff, but partly allowed the counter claim and directed the plaintiff to remove constructions mentioned in order. Against said judgement of trial court, civil appeal no. 254 of 2013 Surya Dutt Vs. Suresh Chandra was preferred by plaintiff. During proceedings of said first appeal, parties had entered into compromise and filed deed of compromise, namely, paper no. 128 Ka/1 and 128Ka/2. In said appeal, after hearing the parties and verifying consent of the parties, Additional District Judge Court No. 15, Allahabad had decided the said civil appeal on the basis of compromise filed by the parties and also directed that deed of compromise (128Ka/1 and 128Ka/2) be formed part of the decree. 3. After passing the judgement dated 21.10.2014 of first appeal, the plaintiff/appellant had moved review application on 20.11.2014. The grounds mentioned in review application moved under Order 40 Rule 1 CPC was that defendant/respondent was not obeying direction of decree and compromise entered between the parties. Therefore, judgment passed in civil appeal no. 254 of 2013 dated 21.10.2014 be quashed and the appeal be restored for re-hearing. 4. After affording opportunity to parties, the first appellate court had decided the concerned review application no. 35 of 2014 (Surya Dutt Vs. Suresh Chandra) by impugned order dated 19.09.2015, by which review application was rejected. Aggrieved by this order of rejection of review application, present second appeal has been preferred by the plaintiff/appellant. 5. Learned counsel for the appellant contended that since defendant/respondent is not respecting the compromise entered into between the parties and not following the mandate of decree of first appellate court, therefore said decree should be quashed. As against it, learned counsel for the respondent pleaded that in the facts of the case, this appeal is not maintainable. 6. Any appeal can be filed only against a decree by a person aggrieved by it. As against it, learned counsel for the respondent pleaded that in the facts of the case, this appeal is not maintainable. 6. Any appeal can be filed only against a decree by a person aggrieved by it. In present case, the decree of first appellate court dated 21.10.2014 was passed with consent of the appellant and he is still agreeable to it. Therefore, this appeal is not maintainable. 7. In any case, if the appellant is satisfied with the decree and has only grievance that respondent is not complying the compromise of decree then he had option to get the decree executed in accordance with procedure mentioned in order 21 CPC, but in present case, instead following regular procedure, the appellant had moved review application before the first appellate court. The first appellate has considered the arguments of the parties and rightly held that judgement on merit cannot be changed by exercising powers of review. This finding of first appellate court is correct, and is being confirmed. The review application, in such circumstances was not maintainable. Therefore, there is no error or irregularity in the impugned order dated 19.09.2015. In this case, the second appeal is not maintainable. 8. In present matter, no question of law, much less a substantial question of law arises. Any of the contention preferred by learned counsel for the appellant is not acceptable. Therefore, this second appeal is hereby dismissed.