JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition for the following reliefs :- "a) by an appropriate writ, order or direction, the impugned order dated 20.9.2017 (Annex.9) passed by learned Additional Civil Judge (J.D.), Metropolitan, Jodhpur in Execution Case No.04/2017 and furthermore direct satisfaction of the decree to be recorded on the same may kindly be recorded or same may kindly be recorded by this Hon'ble High Court or at the maximum direct the executing court to decide the application of the petitioner after permitting leading of the evidence. b) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. c) Writ petition filed by the petitioner may kindly be allowed with costs." 2. The non-petitioner decree holder Smt. Shanti Devi is aggrieved by erection of stone slabs by petitioner Moti Lal in the land adjoining the eastern side of Pam Lal's (father-inlaw of Shanti Devi) portion blocking the drain of waste water. 3. The controversy is pertaining to easementary rights. The non-petitioner decree holder Smt. Shanti Devi filed a suit for injunction against the predecessor-in-title of the petitioner Shri Moti Lal seeking prohibitory permanent injunction for restraining Shri Moti Lal from obstructing flow of water coming from laterine, gutter, septic tank and with a prayer of not closing all these outlets. A further prayer was made that the stone slabs erected in the drain of waste water be removed. 4. The suit was decreed ex-parte on 26.2.1975 and a direction was given to Moti Lal that he should restore the previous position of drain of water existing on the eastern side of the house of plaintiff by removing the stone slabs obstructing the drain. Further a prohibitory injunction was also passed whereby Moti Lal was restrained from demolishing nor closing nor obstructing bathroom and latrine water pipes of the non-petitioner's house. 5. The non-petitioner decree holder Smt. Shanti Devi filed an execution application against the predecessor-in-title of Shri Moti Lal on 04.6.1995 and the judgment-debtor Moti Lal was substituted by subsequent purchaser of the property Dr. Vimal Kumar Razdan. 6. Non-petitioner Smt. Shanti Devi, Dr. V.K. Razdan moved an application on 24.5.1996 to implead Dr. 5. The non-petitioner decree holder Smt. Shanti Devi filed an execution application against the predecessor-in-title of Shri Moti Lal on 04.6.1995 and the judgment-debtor Moti Lal was substituted by subsequent purchaser of the property Dr. Vimal Kumar Razdan. 6. Non-petitioner Smt. Shanti Devi, Dr. V.K. Razdan moved an application on 24.5.1996 to implead Dr. V.K. Razdan in execution case as assignee, judgment debtor, which was allowed by the learned court below on 5.7.1996. 7. The present dispute is arising out of an application moved under section 151 CPC by the petitioner for closure of the execution proceedings on account of compromise reached between the parties. The application under section 151 CPC remained pending and is yet to be adjudicated but the petitioner made an oral prayer to the learned court below stating that evidence should have been taken before deciding the application for closure of execution under section 151 CPC. 8. The learned court below declined the oral prayer vide order dated 20.9.2017 on the ground that the compromise in-question, which forms the basis of the application preferred by the petitioner is not filed by decree-holder Smt. Shanti Devi and also on the ground that the so-called compromise has happened on 08.8.2005 was not taken on record in terms of Section 125 of the Limitation Act. 9. Counsel for the respondent made an objection regarding maintainability of writ petition while seeking conversion of writ petition into a revision petition under section 115 of CPC. The objection was agreed upon by learned counsel for the petitioner, whereupon, this Court passed order dated 14.3.2018, which reads as follows : "Counsel for the respondent objects maintainability of the writ petition and submits that at best, the petitioner may be relegated to the appropriate remedy of filing revision under section 115 of C.P.C. The objection is not refuted by counsel for the petitioner. In light of the aforesaid, let the instant writ petition be treated as revision petition under section 115 CPC and be listed appropriately after a week." 10. Learned counsel for the petitioner moved an application for recalling order dated 14.3.2018 on the ground that the writ petition is maintainable. 11. In light of the aforesaid, let the instant writ petition be treated as revision petition under section 115 CPC and be listed appropriately after a week." 10. Learned counsel for the petitioner moved an application for recalling order dated 14.3.2018 on the ground that the writ petition is maintainable. 11. Learned counsel for the respondent does not oppose recalling of order dated 14.3.2018 and both the learned counsels agree that this Court can finally hear the dispute in writ jurisdiction under Article 227 of the Constitution of India, thus, on their joint submission, the matter is being heard finally with the consent of both the counsels. It is made clear that the Court is hearing the petition by the consent of both the parties only on the issue whether evidence could have been led before deciding the application under section 151 of CPC or not ? 12. Mr. H.R. Soni, Advocate has submitted that in accordance with under Order 23, Rule 3 CPC, there is a procedure laid down in CPC, which provides that where one of the parties denying adjustment of application in a compromise, which has been arrived at, the Court shall decide the question by adopting proper process of law. For supporting the proposition of leading evidence as the compromise has been denied by the nonpetitioner, learned counsel for the petitioner has relied upon :- [1]- Counsel for the petitioner has relied upon the judgment of Hon'ble High Court of Punjab & Haryana in Balbir Kaur & Anr. vs. Mohinder Kaur & Ors., reported in 2017 Law Suit (P&H) 1181 ; relevant portion reads as under :- "3. During pendency of the suits, a compromise was arrived at between the parties in all the three suits and it was reduced into writing. Applications were moved under Order 23, Rule 3 CPC in suit Nos. 2 and 3 and those suits were allowed to be withdrawn in terms of the compromise. 4. On number of occasions, plaintiff-petitioners requested the defendants to get the sale deed executed and registered as per compromise but defendants failed to do so and resiled from their statements. Subsequently, an application was filed by plaintiff-petitioners under Order 23, Rule 3 CPC with sections 89 and 151 CPC for direction to defendant-respondents to come and make statement before the Court to get the sale deed executed and registered. Subsequently, an application was filed by plaintiff-petitioners under Order 23, Rule 3 CPC with sections 89 and 151 CPC for direction to defendant-respondents to come and make statement before the Court to get the sale deed executed and registered. However, said application was dismissed vide order dated 11.5.2015 by holding that when a compromise is alleged by one party and denied by other, it was incumbent upon the Court to hold an enquiry by framing issue of its existence, which has been challenged in the present revision petition. 5. Learned counsel for the petitioners submits that the impugned order is against the law and facts as while deciding the application filed under Order 23, Rule 3 CPC the learned trial Court should have conducted an enquiry to come to a conclusion regarding validity of the compromise arrived at between the parties. The suits filed by defendants were withdrawn because of compromise arrived at between them. The existence and validity of the compromise has become final between the parties and accordingly orders dated 14.7.2014 (Annexure P-2) and order dated 30.9.2014 (Annexure P-3) whereby suits were withdrawn on the basis of compromise will operate as res judicata. 6. Learned counsel for respondents No. 2 to 5 has opposed the submissions made by learned counsel for the petitioners and submits that impugned order does not require any interference. However, learned counsel for respondent No. 14 has also reiterated the arguments as have been raised by learned counsel for respondents No. 2 to 5. 7. The provisions of Order 23, Rule 3 CPC are relevant which are being reproduced as under:- "Order XXIII-Rule 1 and 2. XXX XXX Rule 3. However, learned counsel for respondent No. 14 has also reiterated the arguments as have been raised by learned counsel for respondents No. 2 to 5. 7. The provisions of Order 23, Rule 3 CPC are relevant which are being reproduced as under:- "Order XXIII-Rule 1 and 2. XXX XXX Rule 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 satisfied 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." 8. Admittedly, the compromise arrived at between the parties was reduced into writing and same was duly signed by both the parties, but it was denied by respondents subsequently. Now, the question arises as to what should be the course of action on the part of the Court in such a situation as to whether the Court should reject the compromise on denial of the respondents or Court should hold an enquiry to find out as to whether such compromise really exists or not. One party is asserting the compromise and other party has denied the same and has resiled from said compromise. 9. In proviso to Order 23, Rule 3 of CPC, where the compromise is alleged by one party and denied by the other party, then the Court is to decide the question. One party is asserting the compromise and other party has denied the same and has resiled from said compromise. 9. In proviso to Order 23, Rule 3 of CPC, where the compromise is alleged by one party and denied by the other party, then the Court is to decide the question. Once the determination of question is provided in the proviso itself, the learned trial Court should have ordered for an enquiry by framing an issue as to 'whether there exists a compromise between the parties as alleged'. It should have given opportunities to both the parties to lead evidence which could have been restricted with number of opportunities. The observation made by the Bombay High Court in case Shri Purushottam Pandurang Nipane vs. Shri Tarachand Purushottam Nipane, 1997 (1) I.C.C. 696 is reproduced as under- "10. As has already been pointed out, Order 23, Rule 3 Proviso of the Civil Procedure Code contemplates a complete enquiry. Again, the language lays a stress that no adjournment would be granted for the purpose of deciding the question as to whether such compromise was really in existence. There appears to be no such enquiry having been made by the trial Court and it seems that the trial Court has chosen to decide the question merely on the basis of the applications made before it, vide Exhibits 28 and 30. Proviso to Rule 3 of Order 23 casts a duty on the Court where the compromise application is pending to decide as to whether, in fact, the compromise has been arrived at particularly when one party asserts about the compromise and the other party denies the same. Such indeed was the situation in this matter. While defendants assert the factum of compromise along with the conditions expressed therein, the plaintiff has denied the same. If we see Exhibit 30, the very factum of compromise is also disputed by the plaintiff. Not only this but the plaintiff further goes on to suggest that there was a fraud played upon him for entering into this compromise. The question, therefore, as to whether the said compromise was in reality there or not and further question as to whether the said compromise could be read and recorded, should have been decided by a full fledged enquiry for that purpose. The question, therefore, as to whether the said compromise was in reality there or not and further question as to whether the said compromise could be read and recorded, should have been decided by a full fledged enquiry for that purpose. Again, because of the positive language of Order 23, Rule 3 Proviso, this enquiry should have been immediately conducted. One can understand that when this application (Ex. 28) was given, since the records of the trial Court were not available, the matter could be and, in fact, was adjourned. However, it seems that the adjournment is not for that purpose; because the positive language of was the Proviso to Rule 3 of Order 23, the Court was bound to give reasons as to why it was deferring the enquiry. In this case, the trial Court firstly held that the compromise cannot be read and recorded and indeed such finding could not have been given unless the trial Court had recorded a positive finding regarding the factum of the compromise by parties or not and whether the parties had put their signatures on the compromise application. What the trial Court has done is that it had - mixed these two questions. After all the question of factum of compromise would be different question for the question of validity of the compromise. The trial Court has in a confused manner dealt with these questions and has committed an error in first refusing to read and record the compromise on the ground that the plaintiff had changed the stand. As regards the fact of compromise, the trial Court has left that question open and has deferred that question to the stage when the evidence in the main suit would be led. Now, all this is clearly contrary to the language of Order 23, Rule 3 of the Civil Procedure Code, and more particularly the Proviso thereto. The finding given by the trial Court at the end of para 6, is therefore, premature and has to be set aside. The trial Court was bound to hold an enquiry into the question as to whether there was, in fact, an adjustment or satisfaction, and it is only thereafter that the further question would arise as to whether the terms of the compromise were valid enough so that it could be read and recorded. The trial Court was bound to hold an enquiry into the question as to whether there was, in fact, an adjustment or satisfaction, and it is only thereafter that the further question would arise as to whether the terms of the compromise were valid enough so that it could be read and recorded. The while finding in para 6, therefore, appears to be completely premature. The trial Court has also expressed its doubts regarding the validity of the compromise because of the fact that Parvatibai was not a signatory of such compromise. It is again an admitted position that on 13.9.1993, Parvatibai was deleted from the array of the defendants, the date of which is not known to us. Whether Parvatibai had any interest in the compromise and what is the effect of her subsequent deletion was bound to be considered by the trial Court, which has not been considered at all. The whole case law mentioned by the trial Court in its order, and more particularly in para 6, has been completely misunderstood and was, not necessary. The case law is also not discussed at all. The trial Court has also looked askance at the change of the Advocates by the plaintiff. Unless, therefore, there was a full-fledged enquiry into the factum of the compromise, no further findings could have been recorded rewarding the legality or otherwise of the same. Indeed, all this could have been done at one and the same time, after giving the opportunities to the parties to lead - evidence on that issue. The trial Court would have been justified in directing the parties first to lead evidence on the question of the existence or otherwise of the compromise and could have then decided as to whether the compromise was valid or not. Instead, the trial Court proceeded to hold that the compromise was not valid and then has given an opportunity to the parties to prove or disprove its existence. The whole thing is like putting a cart before the horse." 10. Similarly, in the case of Gangavva vs. Basappa Bapu Naaruti, 2001 (2) I.C.C. 468 , the Karnataka High Court has also made the following observations:- "9. In K. Chandrahas Shetty's case the Court below had recorded depositions of the parties after filing of the compromise petition. The whole thing is like putting a cart before the horse." 10. Similarly, in the case of Gangavva vs. Basappa Bapu Naaruti, 2001 (2) I.C.C. 468 , the Karnataka High Court has also made the following observations:- "9. In K. Chandrahas Shetty's case the Court below had recorded depositions of the parties after filing of the compromise petition. This shows that while enquiring into this aspect of the matter, the Court is required to conduct an enquiry by recording the evidence of the parties, if necessary. In the circumstances, when the petitioner has set up compromise between the petitioner and defendant No. 2 and when defendant No. 2 has denied the same, the Court ought to have conducted the enquiry in this regard and ought to have recorded a finding whether there was a compromise between the plaintiff and defendant No. 2 or not as stated by the plaintiff and ought not to have dismissed the compromise application filed by the petitioner and the statement filed by the petitioner for making an enquiry into this aspect of the matter. In the circumstances, both the orders passed by the Court below cannot be sustained." 11. In the case of P.S.S. Somasundaram Chettiar vs. R. Sathappan and others., the Division Bench of Madras High Court has held as under:- "31. Thus, after consideration of the provision of law and the views expressed in the above judicial decisions, we are of the view that for the purpose of answering the first question contained in the un-amended Order 23, Rule 3 CPC - whether it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part' - it is the foremost duty of the Court before which an application has been filed for recording a compromise to investigate the question whether it has been satisfied that the suit has been adjusted wholly or in part by the agreement, which is attacked as the result of fraud, undue influence and coercion. Especially so, in this case, where the applicant, who stands in a fiduciary relationship as father has propounded the agreement, which is said to have been signed by the quondam minor, viz., the respondent, the respondent's wife and the applicant's own wife, viz., the second plaintiff, with respect to several other items of properties, which are not the subject matter of the suit and the encumbrances over the few items of properties allotted to the quondam minor are said to be very heavy, which fact has not been disclosed in the agreement and the agreement having been propounded more than one year and two months after the date of the agreement. 32. Accordingly, we answer the reference that the first limb of Rule 3 Order 23 of the CPC envisages an enquiry being made by the Court before recording any agreement or compromise on the application of one party for being satisfied itself whether the suit has been adjusted wholly or in part outside the Court, when such agreement is attacked as one that has been obtained by fraud, undue influence and coercion. Any observation made by us in the course of our judgment will not prejudice the parties in the disposal of the application on merits by the Court which will dispose of the same. With the above observations, we direct that the applications be enquired into and disposed of on merits." 12. Learned counsel for respondents No. 2 to 5 has not shown any judgment to the contrary or under such circumstances, no enquiry is required to be conducted. 13. Accordingly, it is held that holding of an enquiry is must in case a compromise is asserted by one party and denied by other party. It is incumbent upon the Court to hold an enquiry by framing an issue of its existence in view of provisions of Order 23, Rule 3 CPC." [2]- Counsel for the petitioner has relied upon the judgment of Hon'ble High Court of Bombay (Nagpur Bench) in Purushottam Pandurance Nipane vs. Tarachand Purushottam Nipane & Anr., reported in 1996 Law Suit (Bom) 655 ; relevant portion reads as under :- "1. Original defendant No. 2, presently defendant No. 1 - Purushottam Nipane has filed this revision challenging therein a common order passed on Exhibits 28, 30 and 35. Original defendant No. 2, presently defendant No. 1 - Purushottam Nipane has filed this revision challenging therein a common order passed on Exhibits 28, 30 and 35. Exhibit 28 is a compromise application, while Exhibit 30 is an objection raised to the same by non-applicant No. 1/plaintiff, and Exhibit 35 is an amendment application again by the plaintiff. By the instant common order, the trial Court has deferred the enquiry into the compromise in Exhibit 28 pursuant to the objection (Exhibit 30) raised by the plaintiff, alongwith the final hearing of the suit, while Exhibit 35 stands allowed and the plaintiff has been allowed to amend his stand. Few facts will be necessary. 2. A Civil Suit came to be filed, being Civil Suit No. 1329 of 1990 for permanent injunction and damages. In this civil suit, the trial Court passed an order of status quo on the temporary injunction application on 18.6.1990. However, the said status quo order was vacated on 1.8.1990. The order vacating the status quo was, therefore, appealed against by the plaintiff. The suit kept on pending and in this suit, defendants filed their written-statement at Exhibit 20. The original defendant, mother of the plaintiff, was deleted, and the present defendant No. 2 was renumbered as defendant No. 1, while present non-applicant No. 2 Prashant Manoharrao Samarth was added as a new defendant No. 2. While the record was pending in the appellate Court in the Miscellaneous Appeal against the order vacating status quo, the parties filed compromise pursis in the trial Court vide Exhibit 28 on 23.4.1993. In the absence of the record, the said compromise was neither read nor recorded by the trial Court and the case was adjourned for awaiting the record; and when the record came, the original plaintiff present nonapplicant No. 1 filed an application Exhibit 30 to cancel the compromise (Exhibit 28). He objected to the same on the ground that he was never a party to the compromise. This application was replied by the defendant No. 1 vide Exhibit 33. Thereafter, on 7.9.1993, the plaintiff filed an application (Exhibit 35) for amendment of the plaint. He objected to the same on the ground that he was never a party to the compromise. This application was replied by the defendant No. 1 vide Exhibit 33. Thereafter, on 7.9.1993, the plaintiff filed an application (Exhibit 35) for amendment of the plaint. Ultimately, Exhibits 28, 30 and 35 came to be heard and decided and as has already been stated earlier, the trial Court held that Exhibit 28 could not be read and recorded, that the objection (Exhibit 30) was just and proper, but the parties were at liberty to adduce evidence about the validity of the compromise petition (Exhibit 28) at the time of final hearing and necessary issues in that respect would be framed in due course. Exhibit 35, which was an amendment application, the same stood allowed. It is this common order which has been challenged by the present applicant original defendant No. 1. 3. As has already been stated, the parties are near relations, inasmuch as the present applicant is the father while non-applicant No. 1 is the son. Originally, the present applicant was arrayed as defendant No. 2 while the wife of the present applicant, i.e., the mother of non-applicant No. 1, was arrayed as defendant No. 1. These were the only two party-defendants. The mother was deleted during the pendency of the suit and, therefore, the present applicant came to be arrayed as defendant No. 1 instead of defendant No. 2, while one other person came to be joined as a necessary party defendant, he being present non-applicant No. 2-Prashant Manoharrao Samarth. The present revision is at the instance of original defendant No. 2, now defendant No. 1. 4. Shri Khapre, learned Counsel appearing on behalf of the applicant, strenuously contended that the impugned order is patently incorrect and causes a great prejudice to the present applicant/defendant No. 1. He pointed out that the observations by the trial Court regarding the compromise are totally uncalled for. According to him, the course adopted by the trial Court to frame an issue about the compromise and to try the same alongwith the main issues in the suit would mean unnecessary hardship to the defendant No. 1 as, in fact, the compromise had taken place and if the compromise application (Exhibit 28) is accepted, then there would be no necessity to proceed with the suit. According to him, therefore, the objection (Ex. According to him, therefore, the objection (Ex. 30) raised by the plaintiff was liable to be rejected. According to him, the order passed on amendment application (Ex. 35) was also wholly incorrect as, in fact, the plaintiff was completely changing his stand and the amendment had the effect of changing the nature of the suit. He pointed out that in the garb of amendment, the plaintiff was changing his position altogether, inasmuch as while earlier he claimed to be a tenant and claimed an injunction on that count; now he had changed his stand and was claiming as a member of the joint family. At any rate, according to Shri Khapre, the whole exercise was futile and unless the compromise application was decided one way or the other, the trial Court could not have decided the amendment application. Shri Khapre drew my attention to Order 23, Rules 1, 2 and 3 of the Code of Civil Procedure, and more particularly to the Proviso to Rule 3, and pointed out that the trial Court had not given any reason for deferring the enquiry on compromise which the trial Court was bound to do. According to him, the trial Court had completely ignored the mandatory provision and, therefore, the order is bad. 9. Order 23 of the Code of Civil Procedure deals with the subject of compromise. Rule 3 thereof most specifically deals with the compromise of the suit. It provides that 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 sighed 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. The Proviso is more specific; and reads as under: 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. Shri Khapre, therefore, submits that once there was a compromise application made, the Court was bound to enquire into the matter as per the positive language of the proviso. Shri Khapre also laid a stress on the provision that such enquiry had to be done immediately and if the Court wanted to even defer the enquiry, it had to give the reasons. Shri Khapre pointed out that in the whole order, there is no such reason given for deferring the said enquiry. While discussing this issue, the trial Court in paragraph 6 of its order has firstly observed that since Parvatibai was not a signatory to the compromise, the said compromise would be of no consequence and would be clearly violative of the language of Order 23, Rule 3, which requires all the parties to the suit to put their signatures on the compromise application. The trial Court has also observed further that this compromise should have been entered into before the appellate Court, as the appeal was pending before that Court. The trial Court has also expressed, that on reading the pleadings of the parties, it seems that defendant No. 3 was trying to take benefit of the quarrel between the father and the son. The trial Court, it seems, is much impressed by the fact that the plaintiff was denying the terms of the compromise and the fact that he had entered into compromise. The trial Court thereafter has straightaway proceeded to hold that the compromise was not lawful and further to the satisfaction of the Court. The trial Court, therefore, has recorded a finding that it was not satisfied with the abandonment of the claim of the plaintiff and has, therefore, concluded that the compromise could not be read and recorded and the suit could not be disposed of. Now, having done this, the trial Court then has actually taken a somersault while deciding point Nos. 2 and 3 and has proceeded to decide thereby as to whether the plaintiff can raise an objection (Exhibit 30) to cancel the compromise. Now, having once held that the compromise itself was not lawful and the said could not be read and recorded, there was no further question of deciding as to whether an objection could be raised to the said compromise. Now, having once held that the compromise itself was not lawful and the said could not be read and recorded, there was no further question of deciding as to whether an objection could be raised to the said compromise. Not only this, but the trial Court has also proceeded to observe in paragraph No. 7 of its order that the objections raised by Exhibit 30 on behalf of the plaintiff were just and proper and it was the duty of the court to consider the same while resolving the dispute between the parties. Now, this shows the utter confusion in the mind of the trial Court. If the trial Court wanted to express on the factum and merit of the compromise as it did, there was no question of keeping the matter open and permitting the parties to lead evidence on the fact as to whether there was, in fact, the compromise in between the parties and whether the said compromise could be read and recorded. One fails to understand as to why the trial Court proceeded to record the findings if ultimately it was of the opinion that the parties were at liberty to adduce evidence about the validity of the compromise petition (Exhibit 28) at the time of final hearing. The whole order, therefore, is self-contradictory. 10. As has already been pointed out, Order 23, Rule 3 Proviso of the Code of Civil Procedure contemplates a complete enquiry. Again, the language lays a stress that no adjournment would be granted for the purpose of deciding the question as to whether such compromise was really in existence. There appears to be no such enquiry having been made by the trial Court and it seems that the trial Court has chosen to decide the question merely on the basis of the applications made before it, vide Exhibits 28 and 30. Proviso to Rule 3 of Order 23 casts a duty on the Court where the compromise application is pending to decide as to whether, in fact, the compromise has been arrived at particularly when on party asserts about the compromise and the other party denies the same. Such indeed was the situation in this matter. While defendants assert the factum of compromise alongwith the conditions expressed therein, the plaintiff has denied the same. If we see Exhibit 30, the very factum of compromise is also disputed by the plaintiff. Such indeed was the situation in this matter. While defendants assert the factum of compromise alongwith the conditions expressed therein, the plaintiff has denied the same. If we see Exhibit 30, the very factum of compromise is also disputed by the plaintiff. Not only this but the plaintiff further goes on to suggest that there was a fraud played upon him for entering into this compromise. The question, therefore, as to whether the said compromise was in reality there or not and further question as to whether the said compromise could be read and recorded, should have been decided by a full-fledged enquiry for that purpose. Again, because of the positive language of Order 23, Rule 3 Proviso, this enquiry should have been immediately conducted. One can understand that when this application (Ex. 28) was given, since the records of the trial Court were not available, the matter could be and, in fact, was adjourned. However, it seems that the adjournment is not for that purpose; because the positive language of the Proviso to Rule 3 of Order 23, the Court was bound to give reasons as to why it was deferring the enquiry. In this case, the trial Court firstly held that the compromise cannot be read and recorded and indeed such finding could not have been given unless the trial Court had recorded a positive finding regarding the factum of the compromise by deciding a question as to whether the compromise was in reality arrived at between the parties or not and whether the parties had put their signatures on the compromise application. What the trial Court has done is that it had mixed these two questions. After all the question of factum of compromise would be different question for the question of validity of the compromise. The trial Court has in a confused manner dealt with these questions and has committed an error in first refusing to read and record the compromise on the ground that the plaintiff had changed the stand. As regards the factum of compromise, the trial Court has left that question open and has deferred that question to the stage when the evidence in the main suit would be led. Now, all this is clearly contrary to the language of Order 23, Rule 3 of the Code of Civil Procedure, and more particularly the Proviso thereto. As regards the factum of compromise, the trial Court has left that question open and has deferred that question to the stage when the evidence in the main suit would be led. Now, all this is clearly contrary to the language of Order 23, Rule 3 of the Code of Civil Procedure, and more particularly the Proviso thereto. The finding given by the trial Court at the end of para 6 is, therefore, premature and has to be set aside. The trial Court was bound to hold an enquiry into the question as to whether there was, in fact, an adjustment or satisfaction, and it is only thereafter that the further question would arise as to whether the terms of the compromise were valid enough so that it could be read and recorded. The whole finding in para 6, therefore, appears to be completely premature. The trial Court has also expressed its doubts regarding the validity of the compromise because of the fact that Parvatibai was not a signatory to such compromise. It is again an admitted position that on 13.9.1993, Parvatibai was deleted from the array of the defendants, the date of which is not known to us. Whether Parvatibai had any interest in the compromise and what is the effect of her subsequent deletion was bound to be considered by the trial Court, which has not been considered at all. The whole case law mentioned by the trial Court in its order, and more particularly in para 6, has been completely misunderstood and was not necessary. The case law is also not discussed at all. The trial Court has also looked askance at the change of the Advocates by the plaintiff. Unless, therefore, there was a full-fledged enquiry into the factum of the compromise, no further findings could have been recorded rewarding the legality or otherwise of the same. Indeed, all this could have been done at one and the same time, after giving the opportunities to the parties to lead evidence on that issue. The trial Court would have been justified in directing the parties first to lead evidence on the question of the existence or otherwise of the compromise and could have then decided as to whether the compromise was valid or not. The trial Court would have been justified in directing the parties first to lead evidence on the question of the existence or otherwise of the compromise and could have then decided as to whether the compromise was valid or not. Instead, the trial Court proceeded to hold that the compromise was not valid and then has given an opportunity to the parties to prove or disprove its existence. The whole thing is like putting a cart before the horse." [3]- Counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court (from Punjab & Haryana) in Gurpreet Singh vs. Chatur Bhuj Goel, reported in 1987 LawSuit (SC) 937 ; relevant portion reads as under :- "4. The hearing of the Letters Patent Appeal commenced before a Division Bench on January 14, 1987 and continued for three days. On January 16, 1987, the appellant's counsel had not concluded and therefore the, hearing was adjourned to January 28, 1987. On that date, after the appellant's counsel had addressed the Court for a while, the parties took time to explore the possibility of a settlement. At the resumed hearing later in the day, the appellant's father Colonel Sukhdev Singh made a statement to the effect: I make an offer that I shall personally pay Rs. 2,25,000 to the respondent Chatur Bhuj Goel by way of full and final settlement of the dispute between him and the appellant. The said amount shall be paid by a bank draft in Court on 17.3.87. In the event of failure on my part to pay the amount as stipulated on that date, the Letters Patent Appeal No. 734 of 1983 shall stand dismissed and the appellant shall have no right to file an appeal against the decision to the "Supreme Court." The above statement was duly endorsed by Shri V.K. Sharma, learned Counsel appearing for the appellant and stated: The appellant makes an offer that in full and final settlement of the dispute between the parties, the appellant Gurpreet Singh in his personal capacity or through his father Colonel Sukhdev Singh shall pay Rs. 2,25,000 to the respondent on 17.3.87 by a bank draft payable at Chandigarh, if the respondent agrees to the Letters Patent Appeal No. 734 of 1983 being allowed and that in the event of nonpayment of the amount on the stipulated date, the said appeal shall stand dismissed and the appellant shall have no right to file an appeal in the Supreme Court. The respondent Chatur Bhuj Goel who, as already stated, is a practising advocate, was respondent by Shri Bhagirath Dass, a senior advocate practising at Chandigarh. Apparently, the respondent on mature deliberation made the following statement in the presence of his counsel: I accept the offer made by Colonel Sukhdev Singh and Shri V.K. Sharma, counsel for the appellant Gurpreet Singh. 5. Thereupon, the learned Judges adjourned the appeal to March 17, 1987 i.e. the date on which the payment of Rs. 2,25,000 was to be made. The aforesaid statements form part of the proceedings of the Court. Admittedly, the compromise was not reduced in writing and signed by the parties. Taking advantage of this fact, the respondent on February 9, 1987 made an application by which he tried to resile from the compromise stating: On 28th January 1987, the offer of compromise was made by the appellant, which was recorded. The statement of the respondent was also recorded. The respondent however did not sign the statement. That the statement was made by the respondent without thinking of the repercussions of his statement. He was influenced by the stand, which was adopted by his Senior Advocate Shri Bhagirath Dass. If the statement recorded by the Court which has not been signed by the respondent is given effect to, the respondent would suffer a tremendous loss. 6. On the adjourned date i.e. March 17, 1987, the learned Judges directed that in view of the fact that the respondent was not prepared to abide by the proposed compromise, the appeal would now be heard and decided on merits, with a further direction that it be placed before another Bench. Hence, this appeal by special leave. 7. 6. On the adjourned date i.e. March 17, 1987, the learned Judges directed that in view of the fact that the respondent was not prepared to abide by the proposed compromise, the appeal would now be heard and decided on merits, with a further direction that it be placed before another Bench. Hence, this appeal by special leave. 7. In support of the appeal Shri S.N. Kacker, learned Counsel for the appellant, contends that the requirements of Order 23, r, 3 of the Code are mandatory and the claim in the suit for specific performance having been settled by a lawful compromise within the meaning of Rule 3, the learned Judges were not justified in directing that the appeal be placed before another bench for decision on merits. The learned Counsel submits that Order 23, Rule 3 of the Code is in two parts. According to him, the words 'in writing and signed by the parties' qualify the words 'any lawful agreement or compromise' appearing in the first part and these words cannot obviously be read into the second part at all. It is urged that the first part of Order 23, Rule 3 of the Code refers to an adjustment on settlement of the claim in suit by a lawful agreement or compromise outside the Court, meaning thereby that where the parties make a statement before the Court that the dispute between them has been settled on certain terms and the statements so made form part of the proceedings of the Court, there is no legal requirement to have an agreement in writing embodying the terms of the compromise. 8. For a proper appreciation of the contentions advanced, it is necessary to set out the Statement of Objects and Reasons which is in these terms: Clause 77-Sub-clause (iii). It is provided that an agreement or compromise under Rule 3 should be in writing and signed by the parties. This is with a view to avoiding the setting up of oral agreements or compromises to delay the progress of the suit. The words 'lawful agreement or compromise' in Rule 3 have given rise to a conflict in the matter of interpretation. One view is that agreements which are voidable under section 19A of the Contract Act are not excluded. While this stand is taken by the High Courts of Allahabad, Calcutta. The words 'lawful agreement or compromise' in Rule 3 have given rise to a conflict in the matter of interpretation. One view is that agreements which are voidable under section 19A of the Contract Act are not excluded. While this stand is taken by the High Courts of Allahabad, Calcutta. Madras and Kerala, a contrary view has been expressed by the High Courts of Bombay and Nagpur. An Explanation has, therefore, been added to the rule to clarify the position. A proviso has been added to clarify that no adjournment should ordinarily be granted where a decision is necessary as to whether an adjustment or satisfaction has or has not been arrived at. In view of the words 'so far as it relates to the suit' in Rule 3, a question arises whether decree which refers to the terms of a compromise in respect of matters beyond the scope of the suit is executable or whether the terms of the decree relating to the matters outside the suit can be enforced only by a separate suit. The amendment seeks to clarify the position. The provision contained in Order 23, Rule 3 of the Code, as amended, provides: 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. 9. 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. 9. According to the grammatical construction, the word 'or' makes the two conditions disjunctive. At first blush, the argument of the learned Counsel appears to be plausible but that is of no avail. In our, opinion, the present case clearly falls within the first pact and not the second. We find no justification to confine the applicability of the first part of Order 23, Rule 3 of the Code to a compromise effected out of Court. Under the rule prior to the amendment, the agreement compromising the suit could be written or oral and necessarily the Court had to enquire whether or not such compromise had been effected. It was open to the Court to decide the matter by taking evidence in the usual way or upon affidavits. The whole object of the amendment by adding the words 'in writing and signed by the parties' is to prevent false and frivolous pleas that a suit had been adjusted wholly or in part by any lawful agreement or compromise, with a view to protract or delay the proceedings in the suit." [4]- Counsel for the petitioner has relied upon the judgment of Hon'ble High Court of Karnataka in Tara Bai vs. V.S. Krishnaswamy Rao, reported in 1985 LawSuit (Kar) 203 ; relevant portion reads as under :- "3. One Srinivasarao died leaving behind him his widow defendant I and two daughters defendant 2 Tara Bai and defendant 3 Shanta Bai and a son Krishnaswamy Rao plaintiff. The plaintiff filed a suit -O. S No. 192/77 for partition and possession of his %th share in the suit property. Later on a joint Memo signed by all the parties and their advocates was filed in the suit on 21-9-1979 stating that the plaintiff Krishnaswamy Rao was entitled to %th share and each of defendants 1 to 3 was entitled to /th share. Accordingly, a preliminary decree in terms of the joint Memo was ordered to be drawn up on 21-9-1979. Thereafter an application for final decree in F.D.P. No. 18/80 was filed by the plaintiff on 16-8-1980. The present revision petitioner-defendant 2 appeared in the decree final proceedings and consented on 13-2-1981 to the appointment of a Commissioner. Accordingly, a preliminary decree in terms of the joint Memo was ordered to be drawn up on 21-9-1979. Thereafter an application for final decree in F.D.P. No. 18/80 was filed by the plaintiff on 16-8-1980. The present revision petitioner-defendant 2 appeared in the decree final proceedings and consented on 13-2-1981 to the appointment of a Commissioner. The Court fixed 18-2-1981 for inspection of the property by the Commissioner. The Commissioner thereafter submitted his report. The Court fixed 6-4--1981 for the objections of the parties, if any, to the Commissioner's report. On that day i.e. 6-4-1981, defendant 2 Tara Bai filed the present Memo/application under Section 151 C.P.C. alleging that the said joint Memo in terms of which a preliminary decree was passed, was vitiated by fraud and that her signature was obtained to that joint Memo by practising fraud or misrepresentation. 8. Then the next question is what is the remedy to a party complaining of fraud or misrepresentation being perpetrated on her. Section 151 C.P.C. reads as: - "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." The learned author Shri Mulla has enumerated a list of various cases in which the Court would be justified in invoking the inherent jurisdiction under Section 151 C.P.C. The learned author Shri Mulla has stated in his C.P.C. 14th Edn. Vol. 1, page 792 at S1. No. 29 as : - "to set aside an order recording compromise obtained by fraud." The learned author Shri Mulla has referred to Bindeswari Prasad vs. Debendra Prasad : AIR 1958 Pat 618 . It has been laid down in Bindeswari Prasad vs. Debendra Prasad AIR 1958 Pat 618 as : - "Where fraud is practised on the Court in obtaining an order recording the compromise, the Court is perfectly justified in setting aside the same under its inherent powers." The learned author Shri Mulla has further stated on page 793 at S1. It has been laid down in Bindeswari Prasad vs. Debendra Prasad AIR 1958 Pat 618 as : - "Where fraud is practised on the Court in obtaining an order recording the compromise, the Court is perfectly justified in setting aside the same under its inherent powers." The learned author Shri Mulla has further stated on page 793 at S1. No. 49 as : - "to vacate an order obtained by fraud, as where an order is made recording the adjustment of a decree (Order 21, Rule 2), and the adjustment has been brought about by fraud practised by one party upon another." The learned author Shri Mulla has referred to Paranjpe vs. Kanade (1882) ILR 6 Bom 148 . Thus it becomes crystal clear that the Court is not helpless even in cases where the compromise has been recorded by the Court when fraud has been perpetrated by either of the parties. Thus, it appears to me, that Section 151 C.P.C. is the only Section that is applicable to such cases. Otherwise, the Court will have to shut its eyes against fraud or misrepresentation which might have vitiated the compromise. The learned counsel Shri Babu urged that when a serious question of fraud of misrepresentation vitiating the compromise had been alleged by the revision petitioner, the Court ought to have given an opportunity to the revision petitioner to lead evidence. It is not for the Court to ask the parties whether they have got any evidence to lead or not. It is for the parties to tell to the Court that they have got evidence to lead and the Court should record the same. When the revision petitioner himself has not chosen to lead evidence on this point, it would be too much to say that the Court did not give an opportunity to the revision petitioner to lead evidence. Therefore the said argument advanced by the learned counsel Shri Babu is rejected." [5]- Counsel for the petitioner has relied upon the judgment of Hon'ble High Court of Delhi in Saregama India Limited; Super Cas settees Industries private Limited vs. Indian Singers Rights Association & ors., reported in 2017 LawSuit (Del) 519 ; relevant portion reads as under :- "10. Therefore the said argument advanced by the learned counsel Shri Babu is rejected." [5]- Counsel for the petitioner has relied upon the judgment of Hon'ble High Court of Delhi in Saregama India Limited; Super Cas settees Industries private Limited vs. Indian Singers Rights Association & ors., reported in 2017 LawSuit (Del) 519 ; relevant portion reads as under :- "10. Pending consideration of the said application, subject applications under Order 23, Rule 3 were filed jointly by the respective respondents for recording the compromise as lawful, disposal of the Suit in terms of the said settlement and passing of a decree in the Suit in terms of the said settlement. 11. Learned counsel for the appellants, before the learned Single Judge, opposed the application under Order 23, Rule 3 and contended that the application under Order 1, Rule 10, filed by them, was required to be disposed of prior to the consideration of the application under Order 23, Rule 3. 17. Learned senior counsel appearing for the appellants relying on the decision of the Supreme Court in Banwari Lal vs. Chando Devi & Anr. (1993) 1 SCC 581 contended that it was obligatory on the Court while considering an application under Order 23, Rule 3 to decide whether the compromise proposed to be recorded was lawful or not. It was further contended that the question as to whether an agreement or compromise was void or voidable under the Indian Contract Act was to be decided by the Court prior to the disposal of the application under Order 23, Rule 3 filed by the parties to the Suit. 21. Reference may be had to the provisions of Order 23, Rule 3 of the Code of Civil Procedure. "3. 21. Reference may be had to the provisions of Order 23, Rule 3 of the Code of Civil Procedure. "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. Explanation : An agreement or compromise which is void or avoidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule." 26. A reading of Order 23, Rule 3A in conjunction with Order 23, Rule 3 shows that the Court before whom a compromise or an agreement is propounded is to satisfy itself that the agreement or compromise is lawful. It is that Court alone which has to undertake the exercise so as to ascertain whether the compromise or agreement is lawful or not and the said exercise has to be undertaken prior to recording the same and passing a decree in accordance therewith. No Court other than the said Court can go into the said question, as no Suit would lie for setting aside a decree on the ground that the compromise on which the decree was based was not lawful. 27. Even if a person not a party to the compromise were to contend that the compromise was not lawful, it would be obliged to approach the same Court, which has recorded the compromise or settlement and passed a decree based thereon. 28. The Supreme court in Banwari Lal (supra) has held as under:- "11. 27. Even if a person not a party to the compromise were to contend that the compromise was not lawful, it would be obliged to approach the same Court, which has recorded the compromise or settlement and passed a decree based thereon. 28. The Supreme court in Banwari Lal (supra) has held as under:- "11. The present case depicts as to how on 27.2.1991 the Court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered into between the parties. The statute requires the Courts to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the Suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order. 13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of Compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. In view of the proviso read with the explanation, a Court which had entertained the petition of Compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code. 14. The application for exercise of power under proviso to Rule 3 of Order 23 can be labelled under Section 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3. It has been held by different High Courts that even after a compromise has been recorded, the Court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise. Reference in this connection may be made to the cases Smt. Tarn Bai vs. V.S. Krishnaswamy Rao AIR 1985 Karnataka 270 , S.G. Thimmappa vs. T. Anantha, Bindeshwari Pd. Chaudhary vs. Debendra Pd. Singh, Mangal Mahton vs. Behari Mahton and Sri Sri Iswar Gopal Jew vs. Bhagwandas Shaw, where it has been held that application under Section 151 of the Code is maintainable. The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that Court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise on 27.2.1991. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise on 27.2.1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that order." (emphasis supplied) 29. In Banwari Lal (supra), the Supreme Court has held that Order 23, Rule 3 requires the Court to be first satisfied that the agreement or compromise, which has been entered into between the parties, is lawful before accepting the same. The Court is expected to apply its judicial mind to the terms of the settlement before recording the same and disposing of the Suit in terms of the settlement. Once a petition of compromise is accepted, it becomes an order of the Court and acquires the sanctity of a judicial order. It is the Court before which a petition of compromise is filed and which has recorded such a settlement, which has to decide the question whether an adjustment or satisfaction has been arrived at based on a lawful agreement. 30. A party challenging the compromise is to file a petition under the proviso to Rule 3 of Order 23. It has been noticed that the power has been vested in the Court before whom the petition of compromise had been filed to entertain an application questioning the legality and validity of the compromise. 31. The Court, which is called upon to take on record a settlement and dispose of the proceedings based on the settlement, is obliged to satisfy itself that the settlement is lawful and is also empowered to go into any question or objection raised with regard to the settlement on the ground of the same not being lawful. 32. The learned Single Judge was accordingly obliged to examine the said issue raised by the appellants that the settlement was collusive and not lawful, prior to accepting the said compromise and passing a decree based thereon. 33. 32. The learned Single Judge was accordingly obliged to examine the said issue raised by the appellants that the settlement was collusive and not lawful, prior to accepting the said compromise and passing a decree based thereon. 33. section 24 of the Indian Contract Act, 1872, inter alia, stipulates that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object is unlawful, the agreement is void. section 23 of the Indian Contract Act, 1872, inter alia, stipulates that the consideration and object of an agreement is lawful unless it is forbidden by law or is of such nature that, if permitted it would defeat the provisions of law or is fraudulent or involves or implies injury to the person or property of another or the Court regards it as immoral or opposed to the public policy. 34. The contention of the appellants is that the settlement arrived at between the parties to the Suit i.e., the respondents, involves injury to the property of the appellants. 35. Since the question raised by the appellants before the learned Single Judge was that the rights of the appellants is adversely affected, by the settlement being arrived at between the parties to the Suit, the learned Single Judge, in our opinion, was obliged to determine the question as to whether the settlement was lawful or not or void or voidable. 36. Since, the learned Single Judge erred in not considering this aspect, we are of the view that the impugned order of the learned Single Judge cannot be sustained." [6]- Counsel for the petitioner has relied upon the judgment of Hon'ble High Court of Bombay in Kamlakant Natwarlal Shah vs. Jagdishchandra Natwarlal Shah & Ors., reported in 2013 LawSuit (Bom) 1427 ; relevant portion reads as under :- "5. The Appellant instituted a suit for partition in January 2010 seeking a declaration in respect of his shares in the two residential flats and for partition. The Second and the Third Respondents have filed written statements supporting the claim of the Appellant. The parties entered upon negotiations, during the course of which the First Respondent paid over to the Appellant an amount of Rs. 48.00 lakhs by an RTGS entry on 12 November 2011. The Second and the Third Respondents have filed written statements supporting the claim of the Appellant. The parties entered upon negotiations, during the course of which the First Respondent paid over to the Appellant an amount of Rs. 48.00 lakhs by an RTGS entry on 12 November 2011. The case of the First Respondent is that on 1 December 2011 consent terms were signed by the parties and their advocates. On 2 December 2011 the suit was listed before Mr. Justice D.G. Karnik. There was litigation pending between the parties. Criminal complaints as well were lodged by each against the other involving non compoundable offences. The consent terms which were prepared on 1 December 2011 envisaged that the civil litigation would be withdrawn and that similarly all the criminal cases would also be withdrawn. On 2 December 2011, when the suit appeared before Mr. Justice D.G. Karnik, it is common ground that the consent terms were not taken on record and were returned back for modification by the Court, since the learned Judge was of the view that the provision made in the consent terms for withdrawal of the cases involving non-compoundable offences, would have to be suitably modified. Thereafter, a second set of consent terms was drawn up on 5 December 2011, which was signed by the parties and by their respective advocates. Both sets of consent terms were interpreted in Gujarati to the Second and the Third Respondents by the Interpreter of this Court, who endorsed her signature at the foot, and initialed each page of the consent terms in token of having interpreted the consent terms. On 7 December 2011, when the suit was on board before Karnik, J., the parties mentioned the proceedings which were thereafter directed to stand over to 4 January 2012. The case of the First Respondent is that the original of the consent terms was handed over to the Appellant, the original Plaintiff. On 4 January 2012, when the suit appeared before Karnik, J., the following order was passed by the Court: The matter has been kept on board under the caption "For Filing Consent Terms". Counsel for the plaintiff states that the consent terms are not ready. Hence removed from board. To be placed on board according to its turn. 9. On 4 January 2012, when the suit appeared before Karnik, J., the following order was passed by the Court: The matter has been kept on board under the caption "For Filing Consent Terms". Counsel for the plaintiff states that the consent terms are not ready. Hence removed from board. To be placed on board according to its turn. 9. Learned Senior Counsel appearing on behalf of the Appellant submits that: (i) Under Order 23, Rule 3 of the Code of Civil Procedure, 1908, the Court has to decide the question where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at; (ii) In the present case there was a serious dispute about whether the parties had arrived at an adjustment by lawful agreement I Notice of Motion No. 2133 of 2012 or compromise within the meaning of Order 23, Rule 3. The case of the Appellant on affidavit is that in addition to the payment which was reflected in the consent terms in the amount of Rs. 48.00 lakhs for the equalization of shares, the First Respondent had agreed to pay an amount of Rs. 1.00 crore in cash to the First Appellant and to the Second and the Third Respondents. An affidavit has been filed both by the mother and by the sister which confirms the understanding which was arrived at between the parties; (iii) The fact that the consent terms were not to be acted upon unless the private arrangement between the parties was fulfilled, is borne out by the fact that even after the execution of the consent terms on 5 December 2011, when the suit appeared before Karnik, J. on 4 January 2012, an adjournment was granted on the statement of the Appellant that the consent terms were not ready. The First Respondent did not oppose the recording of that statement or to the grant of an adjournment on that ground. The First Respondent did not oppose the recording of that statement or to the grant of an adjournment on that ground. Hence, it is evident that on 4 January 2012, the parties proceeded on the basis that the consent terms were not ready for being filed in Court as a basis of a decree on compromise; (iv) Nearly eight months thereafter, a letter was addressed on behalf of the First Respondent to the Appellant on 31 August 2012 for the production of the consent terms and a Motion was thereafter filed for recording the terms of the compromise; (v) In view of the serious contest between the parties in regard to the exact nature of the understanding that was arrived at between them, the learned Single Judge ought to have decided the question within the meaning of the proviso to Order 23, Rule 3 of the CPC by allowing the parties to lead evidence; (vi) The procedure which was adopted by the learned Single Judge in the present case is unknown to law. In order to determine as to whether the payment which is reflected in the consent terms of Rs. 48.00 lakhs by the First Respondent to the Appellant represented a fair value of the share of the Appellant, the learned Single Judge suo motu called upon the parties during the course of hearing to produce the ready reckoner which is prepared for the purposes of stamp duty. The learned Single Judge allowed a depreciation of 60% in respect of the value of the Himgiri flat computed at the value in the ready reckoner and 30% in respect of the Deccan Chamber flat. The Himgiri flat in which the Appellant has an 87.5 per cent share is a sea facing flat in a prime location at Peddar Road and it will be preposterous to allow a depreciation of 60 per cent in respect of such valuable immovable property. The Appellant has now taken out a Motion under Order 41, Rule 27 of the CPC for leading additional evidence, if necessary, in the appeal to establish the sale instances in respect of similar properties in the same building and an adjoining building which would demonstrate the incorrectness of the assumption of the learned Single Judge. The Appellant has now taken out a Motion under Order 41, Rule 27 of the CPC for leading additional evidence, if necessary, in the appeal to establish the sale instances in respect of similar properties in the same building and an adjoining building which would demonstrate the incorrectness of the assumption of the learned Single Judge. Similarly, the learned Single Judge suo-motu summoned the interpreter of this Court, posed questions to her in Court and accepted the statement without allowing any cross-examination. On these grounds, it has been urged that the procedure which has been adopted by the learned Single Judge is alien to Order 23, Rule 3 of the CPC and the impugned judgment would have to be set aside and the Motion restored for a disposal afresh. 12. Order 23, Rule 3 of the CPC provides as follows: Order Xxiii - Withdrawal And Adjustment of Suits: (1)......... (2)......... (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 satisfied the plaintiff in respect of the whole or any part of the subjectmatter 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. The substantive part of Rule 3 of Order 23 is in two parts. The first part is where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by lawful agreement or compromise in writing signed by the parties. The second part is where a Defendant satisfies the Plaintiff in respect of the whole or any part of the subject matter of the suit. The first part is where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by lawful agreement or compromise in writing signed by the parties. The second part is where a Defendant satisfies the Plaintiff in respect of the whole or any part of the subject matter of the suit. The substantive part of Rule 3 requires proof to the satisfaction of the Court. In such an event, Rule 3 mandates that the Court shall order such agreement, compromise or satisfaction to be recorded and pass a decree in accordance therewith. However, where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court has to decide the question. The proviso to Rule 3 was introduced by the Amending Act of 1976. Rule 3A, as it now stands, provides that no suit can lie to set aside a decree on the ground that the compromise on the basis of which the decree was passed, was not lawful. Simultaneously, Order 43, Rule 1(m) which provided for an appeal against such an order of the Court has been deleted by the Amending Act of 1976. Where a Court records an adjustment or compromise within the meaning of Order 23, Rule 3, it passes a decree. An independent suit is not maintainable. 13. These principles have been elucidated in a judgment of the Supreme Court in Pushpa Devi Bhagat vs. Rajinder Singh and others AIR 2006 SC 2628 as follows: 12. The position that emerges from the amended provisions of Order 23, can be summed up thus: (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1, Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. 14. Now, in the present case, consent terms were initially executed between the parties and their advocates on 1 December 2011. The consent terms stipulated that the First Respondent who held a half share in the residential flat at Deccan Chambers, would relinquish his share. Similarly, the Appellant-Plaintiff who held an 87.5 percent share in the Himgiri Flat at Pedder Road, would relinquish his share to the First Respondent. The First Respondent was to pay an amount of Rs. 48.00 lakhs to the Appellant (which, it is not in dispute, has been paid). The consent terms also stipulated that two properties at Kumbhat in the State of Gujarat would be allocated, one to each of the two brothers, after the lifetime of the mother. On 2 December 2011 the consent terms were admittedly not taken on record by the Court. The case of the First Respondent is that the learned Single Judge declined to accept the consent terms since one of the clauses providing for withdrawal of the non-compoundable criminal cases required recasting. The contention of the Appellant is that though the consent terms made the provision for a payment of an amount of Rs. 48.00 lakhs by the First Respondent to the Appellant, that did not reflect the true value of his interest which was approximately Rs. 1.50 crores. The contention of the Appellant is that though the consent terms made the provision for a payment of an amount of Rs. 48.00 lakhs by the First Respondent to the Appellant, that did not reflect the true value of his interest which was approximately Rs. 1.50 crores. According to the Appellant, at the relevant point of time, the First Respondent had agreed with all the members of the family including the Second and the Third Respondents that over and above the amount mentioned in the consent terms, a payment of Rs. 1.00 crore would be made to the Appellant which would be shared between the Appellant and the Second and the third Respondent (the mother and the sister). Moreover, according to the Appellant, the First Respondent agreed that since he did not immediately have the funds necessary to make the payment by cheque, the amount would be paid by cash on the date of signing of the terms. However, the First Respondent allegedly failed to do so. An affidavit has been filed by the mother and the sister in the course of the proceedings before the learned Single Judge. The relevant part of the affidavit reads as follows: 3. We say that despite the said facts, no provision has been made in the consent terms for our benefits. We say that in fact, we were removed to the Hon'ble High Court at Mumbai by the Defendant No. 1 and though, the consent terms were sought to be explained, in fact, what was agreed was altogether different. We say that the Defendant No. 1 had specifically represented that since he is unable to make the payment by cheque, he shall be making payments of Rs. 1 crore by cash in the courts itself immediately upon the consent terms being accepted and the said Rs. 1 crore shall be divided between the Plaintiff and the Defendants No. 2 and 3. 15. Now, admittedly, after the second set of consent terms was executed on 5 December 2011, the suit was adjourned on 7 December 2011 to 4 January 2012. On 4 January 2012 the learned Single Judge noted that the suit had been placed on board for filing consent terms. However, the Court noted the statement of the Appellant that the consent terms "are not ready". On 4 January 2012 the learned Single Judge noted that the suit had been placed on board for filing consent terms. However, the Court noted the statement of the Appellant that the consent terms "are not ready". The suit was, therefore, directed to be removed from the board and was to be placed on board according to its turn. The order of the learned Single Judge dated 4 January 2012 has held the field. No application has been made by the First Respondent to the learned Single Judge for speaking to the minutes, if, according to the First Respondent, the order did not contain a correct record of what had transpired in the Court. The order of the Court, it is well settled, must be regarded and treated as reflecting a correct record of what has transpired during the course of the hearing before the Court. Hence, on 4 January 2012, the parties proceeded on the basis that the consent terms were not ready and it was on that basis that the suit was directed to be removed from the caption of proceedings for the filing of consent terms and was directed to be placed on board "as per its turn". 'According to its turn' meant that the suit now would have to proceed in the normal course for the purpose of adjudication. The First Respondent took out a Motion before the learned Single Judge for recording the terms of the compromise in September 2012 nearly nine months after the order of the Court dated 4 January 2012. 16. The facts which have emerged would indicate that there was indeed a serious contest between the parties as to whether the consent terms which were executed initially on 1 December 2011 and subsequently on 5 December 2011, were intended to be acted upon as mutually agreed terms of settlement. We find merit in the contention of the Appellant that the procedure which was followed by the learned Single Judge was not consistent with Order 23, Rule 3 of the CPC. Order 23, Rule 3 mandates that the question as to whether an adjustment or satisfaction has been arrived at has to be decided by the Court, where it is alleged by one party but denied by the other that such an adjustment or satisfaction has been arrived at. Order 23, Rule 3 mandates that the question as to whether an adjustment or satisfaction has been arrived at has to be decided by the Court, where it is alleged by one party but denied by the other that such an adjustment or satisfaction has been arrived at. Even the substantive part of Rule 3 stipulates that it has to be proved to the satisfaction of the Court that there has been an adjustment or satisfaction in the terms as noted in the provision. The learned Single Judge, in order to determine as to whether the payment of Rs. 48.00 lakhs reflected a just reflection of the share of the Appellant, called upon the parties to produce the Ready Reckoner. All this admittedly took place during the course of the hearing on 28 September 2012 when the order was passed by the Court allowing the Motion. In fact, the learned Single Judge has recorded in paragraph 25 that the Court called upon the parties to show the Ready Reckoner of 2011 for the purposes of determining whether the valuation is reasonably accurate. The observations of the learned Single Judge are as follows: 25. It was also argued that the amount paid off was only a pittance and did not represent the Plaintiff's share at all. The Plaintiff contends that he is entitled to a much larger share. At 2 separate places in his affidavit-in-reply he has stated that the value of his share is Rs. 1.5 crores and Rs. 3 crores. It, therefore, required the Court to consider the valuation of the two properties which the parties decided to partition in the aforesaid mode by buy-off/sell-off mode. The court, therefore, called upon the parties to show the ready reckoner of 2011 to see whether the valuation is even reasonably accurate as per the market rate determined by the Stamp authority. Defendant No. 1 has not only produced the ready reckoner, but Counsel on behalf of Defendant No. 1 has meticulously set out the precise valuation as per the rules of the stamp authority set out in the ready reckoner for both the properties of the parties in Mumbai. (emphasis supplied) The learned Single Judge thereafter proceeded to apply the rates as stipulated in the Ready Reckoner as determinative of the market value of both the flats namely of the Himgiri flat and the Deccan Chamber flat. (emphasis supplied) The learned Single Judge thereafter proceeded to apply the rates as stipulated in the Ready Reckoner as determinative of the market value of both the flats namely of the Himgiri flat and the Deccan Chamber flat. The value of the Himgiri flat was determined at Rs. 2.11 crores on which a depreciation of 60 per cent was applied on the ground that the building has been constructed in 1962. 16. There is merit in the grievance of the Appellant that in respect of a prime property which is situated at Peddar Road (admittedly a sea facing residential flat) the learned Single Judge was not justified in suo-motu applying depreciation, much less to the extent of sixty per cent of the ready reckoner value. Whether in a given case an immovable property should be valued by considering its depreciated value and the rate of depreciation, if any, are matters of valuation and hence of evidence. This is not an exercise which can be carried out suo motu by the Court without evidence under Order 23, Rule 3 of the CPC. Absent evidence, the exercise becomes hypothetical. That apart, it is now a well settled principle of law that the ready reckoner is prepared by the State Government for the purposes of computing the stamp duty payable on transactions. The ready reckoner cannot be regarded as an accurate reflection of market value when the valuation itself is in dispute. A depreciation of thirty per cent was applied by the learned Single Judge in respect of the residential flat at Deccan Chambers on the ground that the building has been constructed in 1982. On this basis the learned Single Judge arrived at a conclusion that the share of the Appellant in the Himgiri flat was Rs. 73.97 lakhs and in Deccan chambers was Rs. 35.84 lakhs. On this basis the learned Single Judge observed that the difference in the valuation for by-off/sell-off was Rs. 38.12 lakhs, against which the Appellant had been paid off Rs. 48.00 lakhs. The whole basis on which this part of the reasoning has been arrived at is to say the least conjectural and hypothetical. 35.84 lakhs. On this basis the learned Single Judge observed that the difference in the valuation for by-off/sell-off was Rs. 38.12 lakhs, against which the Appellant had been paid off Rs. 48.00 lakhs. The whole basis on which this part of the reasoning has been arrived at is to say the least conjectural and hypothetical. The learned Single Judge has proceeded without any evidence at all and we find merit in the contention that there has been a serious miscarriage of justice when the Appellant has been deprived of an opportunity to lead evidence which would establish the real value of the Himgiri and Deccan Chambers flats. The Appellant has now taken out a Motion under Order 41, Rule 27 in the appeal for permission to lead additional evidence of sale instances in the same building and in the adjacent building. Since, in our view, the procedure which has been adopted by the learned Single Judge is contrary to Order 23, Rule 3 of CPC, it is not necessary for this Court to entertain the Motion, since we are inclined to remand the proceedings back to the learned Single Judge for consideration afresh. 17. Similarly, it was in our view inappropriate for the learned Single Judge to suo-motu call the Interpreter to the Court, to put questions to the interpreter and to act on the basis of the replies given by her without giving the parties an opportunity to cross-examine the witness. 18. For these reasons, we have come to the conclusion that the Motion under Order 23, Rule 3 would have to be determined on the basis of evidence by the learned Single Judge and cannot be disposed of in the summary manner in which the impugned order has proceeded to deal with the Motion. In the circumstances, the appeal would have to be allowed and the impugned order of the learned Single Judge dated 28 September 2011 would have to be quashed and set aside. We accordingly allow the appeal and set aside the impugned order dated 28 September 2011. In the circumstances, the appeal would have to be allowed and the impugned order of the learned Single Judge dated 28 September 2011 would have to be quashed and set aside. We accordingly allow the appeal and set aside the impugned order dated 28 September 2011. However, in view of what we have indicated above, we restore the Notice of Motion No. 2133 of 2012 to the file of learned Single Judge for a decision afresh after permitting parties to lead evidence on the question as to whether a lawful compromise was arrived at between them, as reflected in the consent terms dated 5 December 2011." [7] Counsel for the petitioner has further relied upon judgment of this Court in The Managing Committee, Lachoo Memorial College of Science and Technology, Jodhpur vs. Shri Vijay Prakash (S.B. Civil Writ Petition No.10775/2016, decided on 05.1.2018), which reads as follows :- "1. The petitioner has preferred this writ petition under Article 227 of the Constitution of India with the following prayer: "It is, therefore, respectfully prayed that writ petition filed by the petitioner may kindly be accepted, and order under challenge dated 27.08.2016 (Annexure - 06) passed by the learned Executing Court (Additional Civil Judge (J.D.) No.2, Jodhpur Metro) in civil execution No.23/2014 Vijay Prakash vs. Secretary, Management Committee, Lachoo College may kindly be quashed and set aside and application (Annexure - 04) filed by the petitioner may kindly be allowed." 2. Learned counsel for the petitioner states that the order passed by the Rajasthan Non Government Educational Tribunal, Jaipur on 05.10.2017 has been confirmed but for determination of the amount, the execution proceedings ought to be elaborate and detailed so that the determination of the amount consequential to the judgment is made out. 3. Learned counsel for the petitioner has relied upon the judgment reported in 2014(1) Civil Court Cases 108 (Rajasthan); Nagar Palika Nadbai vs. Shri Brij Lal & Ors. The relevant portion of the judgment reads as under: "12. A bare glance at the above provision demonstrates that an attachment order under this provision is made to ensure that the judgment debtor obeys the decree and upon his failure to obey and the attachment order remaining in force for six months, such attached property may be sold and out of the proceeds, the court may award to the decree holder such compensation as it thinks fit. In the instant case, the respondents had prayed for multiple reliefs in their execution petition. They prayed that position which existed before 25/02/2002 be restored and shop, kotha, chabutra etc. be constructed at the cost of the judgment debtor; that the responsible persons be sent to civil jail, that the property attached be sold and they be compensated to the extent of Rs. 2,00,000/-. The executing court vide its order dated 13/05/2005 only passed an order of attachment of the property worth Rs. 50,000/- and the order is silent with respect to the other reliefs as claimed in the execution petition. 13. Besides, from a bare perusal of the order it is revealed that the executing court in view of the factual controversy involved in the petition, deemed it appropriate to allow both the parties to lead oral as well as documentary evidence to substantiate their respective claim akin to a suit. This procedure adopted by the executing court cannot be faulted with but to resolve the factual controversy on better footing, it would have been appropriate for the trial court to frame specific points with regard to the controversy involved and then pass an order distinctively on each such point of controversy leaving nothing to realm of ambiguity. Framing of issues is not mandatory in deciding an execution petition but where complete factual controversies are involved, it is always appropriate in the fitness of things to frame all points of controversy and pass an order distinctively on each such point framed. Adopting such a procedure confirms with the principles of natural justice and fair play, besides putting the rival parties to notice as to what case they have to meet, it further prevents surprise and attention of stand at the final stage. This Court is convinced that the instant matter involved complex factual controversies which need to be resolved by framing distinct point of controversy. Whether the demolition was carried out by the District Administration (PWD) or at the behest of Nagar Palika; whether the property effected by the decree dated 10/08/1977 was the same upon which the demolitions were done; whether the applicants were entitled to whole relief as claimed are the main controversies which emanates from the execution petition and the reply thereto. Whether the demolition was carried out by the District Administration (PWD) or at the behest of Nagar Palika; whether the property effected by the decree dated 10/08/1977 was the same upon which the demolitions were done; whether the applicants were entitled to whole relief as claimed are the main controversies which emanates from the execution petition and the reply thereto. This Court is of the opinion that passing of an order in a wholesome manner without proper framing of the points of controversy by the executing court was not appropriate and the same cannot be sustained. 14. Hence, the impugned order is quashed and set aside and the matter is remanded back to the executing court for fresh decision after framing specific and distinct points of controversy as indicated herein before and then pass a detailed order distinctively on each point. It is further directed that after framing of such points, the rival parties shall fully be entitled to lead evidence in support of their respective claims and the executing court will pass an order after appreciation of such evidence in accordance with law. It is clarified that this Court has not expressed any opinion as to the conclusions drawn by the executing court in its order dated 13/05/2005. The trial court is free to decide the matter in accordance with law without being influenced by any observation made herein above. Since the matter pertains to the year 2005, therefore, this Court deems it appropriate to direct the executing court to decide the matter afresh in accordance with law in the manner indicated herein above, within a period of four months from the date of receipt of certified copy of this order." 4. Learned counsel for the respondent states that though he has preferred his claim in accordance with the judgment of the Tribunal dated 05.10.2017 and has placed his record but it shall be always open for this Court to determine on his own merits. 5. This Court on perusing of the precedent law cited by learned counsel for the petitioner, deems it appropriate to follow the same as it is sufficiently covering the present dispute. 5. This Court on perusing of the precedent law cited by learned counsel for the petitioner, deems it appropriate to follow the same as it is sufficiently covering the present dispute. Thus, in accordance with the precedent law, the impugned order is quashed and set aside and the matter is remanded back to the executing court for fresh decision after framing specific and distinct points of controversy as indicated herein before and then pass a detailed order distinctively on each point. It is further directed that after framing of such points, the rival parties shall fully be entitled to lead evidence in support of their respective claims and the executing court will pass an order after appreciation of such evidence in accordance with law. Such framed adopting such procedure should be in conformity with the principles of natural justice and fair play besides putting rival parties to notice so as to what case they have made out could be resolved. 6. In light of the aforesaid discussion, the present petition is disposed of. 13. Learned counsel for the respondent strongly refuted the submissions on the ground that Order 23, Rule 3 CPC is applicable during the suit whereas the so-called compromise has been arrived at during the execution proceedings and, therefore, the procedure laid down in Order 23, Rule 3 CPC would not be applicable. Learned counsel for the respondent Mr. Sandeep Shah further averred that on a bare reading of compromise, the same has been not been entered into by Parulal and Smt. Shanti Devi. Learned counsel for the respondent stated that Unna Lal was not authorized to make any compromise on behalf of Smt. Shanti Devi his wife and at best he could have entered into compromise on the basis of Paru Lal his partner. Learned counsel for the respondent has further stated that there were two different suits; one was by Shri Paru Lal and another by Smt. Shanti Devi and even if the suit of Paru Lal as mentioned in para-1 of so-called compromise is permitted to be compromised, then also the same shall not affect the suit preferred by Smt. Shanti Devi. 14. Learned counsel for the respondent has also harped upon para-1 of the affidavit inquestion which clearly reflects that the compromise is between Dr. Razdan and Shri Paru Lal/Unna Lal and no compromise has ever happened between Smt. Shanti Devi and the petitioner. 14. Learned counsel for the respondent has also harped upon para-1 of the affidavit inquestion which clearly reflects that the compromise is between Dr. Razdan and Shri Paru Lal/Unna Lal and no compromise has ever happened between Smt. Shanti Devi and the petitioner. The affidavit (Annex.4) reads as follows : ^^'kiFk i= ge foey dqekj jktnku cgSfl;r [kqn o cgSfl;r drkZ fgUnw vfoHkkftr ifjokj %& 1- Jh ik:yky ds LokfeRo ds Hkw[k.M ds iwoZ esa vkbZ MkŒ jktnku ds LokfeRo dh Hkwfe esa ls muds Hkw[k.M ls fpirk 5 QqV ¼tgka rd QkVd [kqyrk gS½ o nf{k.kh Nksj rd 6 QqV Hkwfe esa MkŒ jktnku Jh ik:yky ds gd esa nsuk Lohdkj djrk gwaA nf{k.kh Nksj dh vksj tgka ij esjs LokfeRo dh Hkwfe 6 QqV ls de ogka mruh gh muds gd esa nsuk Lohdkj djrk gwaA jkoth dh gosyh ds nf{k.kh Nksj rd eSa fdruh Hkh Å¡pkbZ rd fuekZ.k dk;Z djkus ds fy, Lora= gwa fdUrq mlds vkxs pkjnhokjh dh Å¡pkbZ 6 QhV ls vf/kd ugha gksxhA 2- bl le>kSrs ds lkFk nksuksa i{kksa ds chp vFkkZr ik:yky o eksrhyky oxSjg ds chp ds lkjs U;kf;d fookn] ftuesa ik:yky o MkŒ foey jktnku ds chp ds lkjs fookn Hkh 'kkfey gS & nksuksa i{kksa dh lgefr ls lekIr dj fn, tk,xsa o nksuksa i{k vius okn okfil ys ysrs gSA 3- eSa MkŒ foey jktnku xVj ykbu tks 'kkafr nsoh ds LokfeRo ds Hkw[k.M ls gekjs ¼esjs fgUnw vfoHkkftr ifjokj ds½ Hkw[k.M dh vksj vk jgs gS] muds ljdkjh xVj ykbu dh vksj ls tkus dk okftc [kpZ ogu djus dks rS;kj gwaA blds lkFk gh pwafd MkŒ jktnku dks viuh xVj ykbu 6 QhV dh Hkwfe esa ls f[kldkuh iM+sxh mldk [kpZ blesa ls de dj fn;k tk,xkA bu nksuksa dk;ksZ dk Bsdsnkj ,d gh gksxkA 4- blds lkFk gh 'kkafr nsoh o eksrhyky ;k 'kkafr nsoh o MkŒ jktnku ds chp ds lkjs fookn lekIr gks tk,axsA nksuksa i{k vius&vius okn okfil ysrs gSA 5- bl le>kSrs dks U;k;ky;ksa esa ekU; le>kSrk le>k tk,xkA 6- ;g le>kSrk iwjs gks'kksa gokl] fcuk u'ks irs o fcuk nkc&ncko ds fd;k gS ftlesa ge nksuksa i{k lger gSaA 7- dfe'uj uxj fuxe o fMohtuy dfe'uj esa Hkh ;g le>kSrk ekU; gksxkA** 15. Counsel for the respondent has also objected to adopting the procedure under Order 23, Rule 3 CPC on account of the fact that the same is applicable only for the basic proceedings in the suit and cannot be invoked for the purpose of execution proceedings. Learned counsel for the respondent has further argued that for the purpose of execution proceedings the evidence can be gathered only in accordance with Order 21, Rule 97 as those proceedings are original proceedings required for leading of evidence. Counsel for the respondent further averred that the precedent law cited by learned counsel for the petitioner shall not be applicable in the present facts and circumstances as Order 23, Rule 3 is not applicable on the dispute and the precedent law is only about such provisions. 16. Counsel for the petitioner in his rejoinder further submits that Section 141 Civil Procedure Code has saved the procedure part for all proceedings in civil court and, thus, the execution proceedings shall be amenable to the procedure laid down under Order 23, Rule 3 CPC. Counsel for the petitioner has further averred that on a bare reading of the compromise, particularly, in para-3 & 4, which have already been reproduced, it is writ large that the compromise clearly reflects that Unna Lal husband of the non-petitioner Smt. Shanti Devi had entered into a full and final compromise with the petitioner on her behalf. Learned counsel for the petitioner has also averred that since he has been able to demonstrate by virtue of section 141 of CPC that Order 23, Rule 3 CPC would be applicable, therefore, the learned court below ought to have taken the evidence before deciding the application under section 151 of CPC. 17. Learned counsel for the respondent further argues that since on a bare reading of the document involvement of Smt. Shanti Devi the compromise is reflected, therefore, ascertainment of the said fact can be done by the learned court below only by taking appropriate evidence. Signatures and presence of Shri Unna Lal in the agreement is not disputed by the respondents. 18. Signatures and presence of Shri Unna Lal in the agreement is not disputed by the respondents. 18. After hearing learned counsel for the parties and perusing record, this Court is of the opinion that ordinarily in execution proceedings the Executing Court shall not go behind the decree but since a document has been shown which reflects that the some kind of compromise has been arrived at between the parties during execution itself, therefore, such document has to be examined as per procedure laid down under Order 23, Rule 3 CPC, which is meant for rebuttal of compromise during suit. 19. We have seen the precedent law cited by counsel for the petitioner and the complete precedent law clearly lays down that in the proceedings of Order 23, Rule 3 CPC evidence and enquiry would be necessary for the learned court below to reach to a conclusion regarding alleged compromise. We further make it clear that this order shall not prejudice the learned court below in deciding the application under section 151 CPC. This order shall not prejudice either of the parties as far as merits of the case is concerned. 20. This Court while striking down the impugend order dated 20.9.2017 directs the learned court below to take evidence of the petitioner on a single date i.e. on 16.8.2018 and thereafter proceed with deciding the application under section 151 of CPC preferred by the petitioner and opposed by the non-petitioner. It shall be open for the petitioner to make all necessary prayers and submissions strictly in accordance with law. Needless to say right of the non-petitioner to respond to the evidence rendered by the petitioner shall remain reserved before the learned court below.