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2016 DIGILAW 3846 (ALL)

ISRAR HUSAIN v. MOHAMMAD LATEEF

2016-11-30

ATTAU RAHMAN MASOODI

body2016
JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Heard learned Counsel for the appellant. 2. The issue as to whether an appeal under Order 43 Rule 1-A would lie against a compromise decree or not was set at rest between the parties in the judgment rendered by this Court in Second Appeal No. 122 of 2011 on 22.12.2014 and in pursuance thereof, the proceedings before the first appellate Court in civil appeal No. 09 of 2011 proceeded and the first appeal on being decided by judgment/decree dated 6.9.2016 has given rise to the present second appeal under Section 100 C.P.C. 3. Learned Counsel for the appellant has argued that the judgment/decree rendered by the first appellate Court below is bad in the eye of law for the reason that the Court below failed to comply with the mandatory requirement of Order 41 Rule 31 C.P.C. inasmuch as, the points of determination involved in the first appeal were not framed and decided, hence a substantial question of law is made out. 4. This submission made by learned Counsel for the appellant was scrutinized in the light of grounds raised in the appeal as well as evidence led before the Courts below. The first appellate Court has categorically adverted to the grounds of appeal and particularly to the challenge made on the issue of compromise which was stated to have been arrived at under the influence of medication. This being a question of fact was dealt with by the first appellate Court in the light of available material and it is recorded that no evidence whatsoever was filed by the appellant-defendant to prove the ground urged. This finding of fact does not suffer from any legal infirmity once there was no evidence available on record. The appellant has failed to show that the ground urged before the first appellate Court was attempted to be proved on the basis of any medical evidence or otherwise and to find a fault with the finding recorded by the Court below and that too a finding of fact, it is not open to be looked into in the exercise of power under Section 100 C.P.C. 5. Learned Counsel for the appellant secondly argued that the compromise being one sided was not liable to be accepted by the trial Court to be a lawful compromise. Learned Counsel for the appellant secondly argued that the compromise being one sided was not liable to be accepted by the trial Court to be a lawful compromise. On scrutiny of Order 23 Rule 3, it is gathered that the twin requirement to be proved to the satisfaction of the Court is that the agreement is bound to be signed by both the parties and it has to be lawful. Insofar as the signature on the agreement is concerned, the same has not been disputed by the appellant-defendant. There is no mention in any of the grounds raised in the appeal that the agreement so arrived at between the parties is unlawful, yet for the purpose of consideration, this Court has scrutinized the relevant aspects of the matter on the basis of material available on record. The submission that the agreement is unlawful on the ground that it has settled rights between the parties beyond the scope of suit property cannot be accepted for the reason that the compromise decree is supported with a map which defines the meets and bounds of the disputed property not beyond the subject-matter of suit and on that account, the submission made by learned Counsel for the appellant is not tenable in the eye of law. 6. It is also well-settled that the compromise decree is binding between the parties and does not affect third party rights. Any party other than the parties to the suit if affected by a compromise, can avail the remedy open under law and a compromise decree by necessary implication of law, would not eclipse third party rights. 7. Lastly it was submitted that the appellant had disputed the compromise decree on the ground of being obtained under the influence of medication and the plea of fraud so urged would shift the burden of proof on the respondent-plaintiff to prove the decree to be based on a lawful agreement. Mere allegation of fraud on the ground put forth would not shift the burden unless there was some evidence led to this effect and pressed. The submission made by the learned Counsel in absence of any foundation is liable to be rejected. 8. Mere allegation of fraud on the ground put forth would not shift the burden unless there was some evidence led to this effect and pressed. The submission made by the learned Counsel in absence of any foundation is liable to be rejected. 8. There is no other point urged by learned Counsel for the appellant on the basis of which the compromise entered into between the parties may invite any consideration within the scope of Section 25 of the Indian Contract Act in the light of explanation appended to Order 23 Rule 3. 9. With the clarification as recorded above, no substantial question of law arises in the present second appeal, hence the appeal not being maintainable is hereby rejected.