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2017 DIGILAW 1181 (GAU)

Akter Ali @ After v. Abeda Khatun

2017-08-28

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mrs. R. Choudhury, the learned counsel for the petitioners as well as Mr. SS Sharma, the learned senior counsel for the respondents No. 1 to 6 and Mr. D. Doley, the learned Govt. Advocate for respondents No.7 to 9. None appears for the respondent No.10. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 12.08.2016 passed by the learned Munsiff, North Salmara, Abhayapuri, in Title Execution Case No.7/2015 thereby rejecting the petition filed by the petitioner under Section 47 of the Code of Civil Procedure. 3. The learned counsel for the petitioner projects that the predecessor-in-interest of the respondents No.1 to 6, namely, Late Nur Islam filed the Title Suit No.24/2012 wherein the present petitioners were arrayed as defendants No.1 to 8 in the plaint. The suit land was a plot of land measuring 1 Bigha 2 Katha 2 Lechas covered by Myadi Patta No.256, Dag No.48 in the village- Kheluapara, Part-VII, Sadar, Bonitamari, PS- Jogighopa in the district of Bongaigaon. It is stated that the plaintiff and the defendant No.9 (respondent No.10 herein) entered into a compromise and by filing Petition No.1286/14 under Order XXVI Rule 9 read with Order XXIII Rule 3 CPC the said parties agreed for a joint survey of the suit land by appointing a Commissioner, and that if the suit land is found to be Patta land then the defendants and their servants, agents, workmen, relatives etc. would vacate the same by demolishing and removing the houses and other construction therefrom in favour of the plaintiff and if the suit land is found to be Govt. Khas land, then the plaintiff will be debarred from claiming the same. 4. The learned counsel for the petitioners has submitted that the present petitioners did not sign the compromise and they came to know about the decree in the said suit only when in the connected execution proceeding, the decree holders came to the suit land to evict the petitioners. Therefore, under the said circumstances, the petitioners filed an application under Section 47 CPC on the ground that the decree was not executable against them as the compromise entered between the plaintiff and the respondent No.10 herein would not bind them and that the decree was not binding upon the petitioners herein. Therefore, under the said circumstances, the petitioners filed an application under Section 47 CPC on the ground that the decree was not executable against them as the compromise entered between the plaintiff and the respondent No.10 herein would not bind them and that the decree was not binding upon the petitioners herein. It is submitted that the learned Executing Court after hearing both sides by the impugned order dated 12.08.2016 held that as the petitioners remain unrepresented at the time of compromise, therefore, the decree was binding on them. 5. The learned counsel for the petitioners relying on the case of Gurpreet Singh vs. Chatur Bhuj Goel, AIR 1988 SC 400 and Ramchandra Bhikchand Nahar and another vs. Narhar Maruti Udavant and others, AIR 1996 BOM 338 , has submitted that since only one of the defendant had entered into the compromise, the decree cannot be executed against the other defendants No.1 to 8 (i.e., the petitioners herein), who are not bound by the decree. 6. Per contra, the learned senior counsel for the respondents No.1 to 6 has argued that the petitioners herein took the risk of remain ex-parte in course of the trial of the suit. It is also submitted that the compromise between the plaintiff and respondent No.10 herein was bonafide and as the petitioners had remained absent in the suit, there is no way to escape the decree. 7. In order to appreciate the submissions advanced by the learned counsel for both sides, it is required to refer to the provisions of Order XXIII Rule 3 of CPC, which is quoted below: “3. 7. In order to appreciate the submissions advanced by the learned counsel for both sides, it is required to refer to the provisions of Order XXIII Rule 3 of CPC, which is quoted below: “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 than 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.” 8. From the language used in the said provision, it is mandatory that the court must be satisfied that the suit has been adjusted wholly or in part by any part by any lawful compromise which is in writing and signed by the parties only then the learned trial court can record its satisfaction as regards the compromise and allow the decree in terms of the compromise. By laying emphasis on the words “in writing and signed by the parties”, this Court is of the view that all the parties must be duly represented in accordance with law while signing the compromise. 9. It is already well settled as to who are the competent person to sign or to represent the parties in the suit and it can be by the party in person or by duly recognized or authorized agent falling within the meaning of Order III Rule 1 CPC. The persons, who are recognized as agent, is defined under Order III Rule 2 CPC. 10. The persons, who are recognized as agent, is defined under Order III Rule 2 CPC. 10. On perusal of the materials on record and the application under Order XXVI Rule 9 read with Order XXIII Rule 3 CPC, which is annexed as Annexure-3 to this application, there is nothing on record to show that the respondent No.10 herein or the predecessor-in-interest of the respondents No.1 to 6, namely, Nur Islam Sheikh were the authorized agent of the petitioners herein. 11 Going by the ratio as laid down in Gurpreet Singh (supra) as well as Ramchandra Bhikchand (supra), this Court is satisfied that the petitioners herein are not bound by the compromise. Therefore, in any event, the said compromise cannot be said to be binding on the present petitioners herein. Therefore, the objection filed by the petitioners herein under Section 47 CPC is found to be sustainable both on facts and in law. The findings recorded by the learned Executing Court that as the petitioners herein remained unrepresented at the time of compromise, therefore, the compromise is binding on them is not supported by any law for the time being in force. Accordingly, it is held that the learned trial court had committed jurisdictional error in rejecting the application under Section 47 CPC filed in connection with Title Execution Case No.7/2016. Therefore, the order dated 12.08.2016 is liable to be set aside. 12. At this stage, the learned senior counsel for the respondents has submitted that as the petitioners herein are the necessary parties for adjudicating their claims in respect of the suit land, and as this Court has already held that the compromise is not binding on the petitioners herein and as the compromise has not been made between all the parties to the suit, the liberty is granted to the respondents to proceed with the suit afresh, if required, even by interfering with the decree. 13. Considering the submission made by the learned senior counsel for the respondents, this Court instead of adjudicating on the said submission, deems it fit to grant liberty to the parties to move the Executing Court or the learned trial court by raising the issue there, if so advised. 14. Accordingly, this revision stands allowed by setting aside the impugned order dated 12.08.2016 passed by the learned Munsiff, North Salmara, Abhayapuri, in Title Execution Case No.7/2015, on the terms as indicated above. 14. Accordingly, this revision stands allowed by setting aside the impugned order dated 12.08.2016 passed by the learned Munsiff, North Salmara, Abhayapuri, in Title Execution Case No.7/2015, on the terms as indicated above. The objection as to execution under Section 47 CPC is sustained. The judgment and preliminary decree dated 11.09.2014 in Title Suit No.24/2012 passed by the learned court of Munsiff, North Salmara, Abhayapuri is not executable against the petitioners herein. Liberty is granted to the parties to raise any other issue either before the learned Executing Court or before the learned trial court as they may deem fit and proper. 15. Both the parties, who are duly represented by the learned counsels are directed to appear before the learned Executing Court on 15.09.2017 without any further notice of appearance and by producing a certified copy of this order, shall seek further instruction from the said learned court.