ORDER : 1. Heard Mr. Virat G. Popat, the learned advocate appearing for the writ applicants and Ms. Sweta Lodha, the learned advocate appearing for the respondent. 2. While issuing notice on 23.12.2022, the following order came to be passed which reads thus :- "1. Heard learned Advocate Mr.Virat Popat appearing on behalf of the petitioners. Learned Advocate Ms.Shweta Lodha submits that she has instruction to appear on behalf of the respondent and she seeks permission to file her vakalatnama and tenders affidavit on behalf of the respondent. Permission is granted. The affidavit filed on behalf of the respondent is taken on record. 2. By way of this petition, the petitioners challenge an order dated 5.12.2022 passed below Exh.290 in Regular Civil Suit No.3069 of 1994, whereby an application preferred by the parties jointly for disposing of the Regular Civil Suit on consent of the parties has been rejected. 3. Considering the submissions made by the learned Advocate Mr.Popat, more particularly the submission that the principal consideration that weighed with the Court while passing the impugned order dated 5.12.2022 was not a consideration, which ought to have weighed with the Court, since the said issue had already been decided in the Civil Suit vide an order dated 30.3.2007 below Exh.38 and 40. This Court has also considered the submission of the learned Advocate Mr.Popat that since the issue of the power-of-attorney not coming to an end upon the death of the executor, was an issue which had been decided vide an order of the 30th March, 2007 referred herein above in favour of the present petitioner and since the law on the aspect of res judicata being applicable even in case of orders passed in the same proceedings is the well settled proposition of law, the first aspect as referred to herein above and the second aspect of non-joinder of legal heirs of the executor of the power-of-attorney was also an irrelevant issue, which ought not to have been considered by the Court below. This Court has also considered the submission of the learned Advocate Mr.Popat that the parties having decided to settle the dispute in a particular manner and having tendered consent terms, unless the consent was for doing something illegal, the learned Court ought to have disposed of the suit on basis of the said consent terms. 4. This Court has also considered the submission of the learned Advocate Mr.Popat that the parties having decided to settle the dispute in a particular manner and having tendered consent terms, unless the consent was for doing something illegal, the learned Court ought to have disposed of the suit on basis of the said consent terms. 4. Having regard to such submissions, issue notice for final disposal returnable on 12.1.2023. Learned Advocate Ms.Lodha waives service of notice for respondent. By way of interim relief, execution of the order dated 5.12.2022 passed below Exh.290 in Regular Civil Suit No.3069 of 1994 is hereby stayed. On the returnable date, list the matter on top of the board." 3. Mr. Virat Popat, the learned advocate appearing for the writ applicants submitted that the writ-applicants herein are the legal heirs of Valjibhai Laxmanbhai Dodia who was permitted to be joined as plaintiff under Order 1 Rule 10 on an application filed by the deceased Valjibhai Laxmanbhai Dodia below Exh.40 who was the original plaintiff having instituted in the suit in capacity as power-of-attorney holders of Ramji Madhavji Kamdar original owner of the disputed land as referred above. The order below Exh.38 and 40 in Regular Civil Suit No.3069 of 1994 dated 30.3.2007 reads thus :- "The application Ex.38 submitted by the defendant is rejected and the application Exh.40 submitted by the plaintiff under O.1 R.10 of C.P.C. is hereby allowed. The applicant Valji Laxmanbhai Dodia being power of attorney of decd. Ramjibhai Madhavjibhai Kamdar shall be now considered the plaintiff in the facts of the suit. Pronounced in open court, today on this 30th day of March, 2007." 4. It appears that from the said order the deceased power-of-attorney i.e. plaintiff Valjibhai Laxmanbhai Dodiya has been permitted to be added as plaintiff under Order 1 Rule 10. The plaintiff expired on 22.3.2016 and the legal heirs of the plaintiff preferred an application under Order 22 Rule 3 to be joined as legal heirs of the deceased plaintiff. The said application came to be rejected by the 4th Additional Civil Judge, Rajkot by order dated 15.12.2017 below Exh.268 which is duly produced at Annexure-D. 5. Being aggrieved by the said order, the writ-applicants approached this Court by filing Special Civil Application No.22992 of 2017, wherein by order dated 29.4.2022, the legal heirs of the plaintiff viz. The said application came to be rejected by the 4th Additional Civil Judge, Rajkot by order dated 15.12.2017 below Exh.268 which is duly produced at Annexure-D. 5. Being aggrieved by the said order, the writ-applicants approached this Court by filing Special Civil Application No.22992 of 2017, wherein by order dated 29.4.2022, the legal heirs of the plaintiff viz. Valjibhai Laxmanbhai Dodiya came to be permitted to be joined as legal heirs in Regular Civil Suit No.3069 of 1994 and the concerned Court was directed to proceed accordingly in the said suit. The said order dated 29.4.2022 reads thus (Page No.52, Annexure-F) :- "Learned advocate Mr. Nisarg Desai for M/s. Gandhi Law Associates for the respondent No. 1 has submitted an affidavit dated 24.04.2022, affirmed by respondent No. 1 herein – Shatilal Jadavji Jagani stating therein that he has no objection if the present petitioners are joined as legal heirs of Valjibhai Laxmanbhai Dodiya, who by an order dated 30.03.2007 passed below Exh. 40 in the Regular Civil Suit No. 3069 of 1994, is treated as plaintiff for all purposes, in the said suit and the suit is allowed to proceed in accordance with law. In view of the aforesaid affidavit filed by the respondent No. 1 as well as considering the order passed below Exh. 40 dated 30.03.2007 in the Regular Civil Suit No. 3069 of 1994 and the fact that though served, the respondent No. 2 has not appeared, in the opinion of the Court, ends of justice would meet if this petition is disposed of with an observation that present petitioners be treated as legal heirs of deceased Valjibhai Laxmanbhai Dodiya and be joined as such in Regular Civil Suit No. 3069 of 1994 and to direct the trial Court concerned to proceed with the suit accordingly, in accordance with law. Order accordingly. However, liberty is reserved in favour of the respondent No. 2 to move this Court in case of difficulty. With aforesaid, the petition stands disposed of." 6. The writ-applicants herein being legal heirs of deceased Valjibhai Laxmanbhai Dodia and defendants herein arrived at a settlement and the said settlement pursis came to be produced by the parties jointly before the concerned Court by an application below Exh.290. With aforesaid, the petition stands disposed of." 6. The writ-applicants herein being legal heirs of deceased Valjibhai Laxmanbhai Dodia and defendants herein arrived at a settlement and the said settlement pursis came to be produced by the parties jointly before the concerned Court by an application below Exh.290. The concerned Court while deciding the said application declined to accept the settlement arrived at between the parties in terms of compromise agreement under the provisions of Order 23 Rule 3 of the Civil Procedure Code which resulted in the filing of the present petition seeking the following reliefs :- "(a) To allow this petition; (b) To issue a writ of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 05.12.2022 passed below Exh.290 in Regular Civil Suit No.3069/1994 by the learned Senior Civil Judge, Rajkot at Annex-'A' (Colly) and further be pleased to direct the learned Senior Civil Judge, Rajkot to draw decree as per compromise below Exh.290 in Regular Civil Suit No.3069/1994 and pass all other consequential and effective orders in that regard; (c) Pending admission, hearing and final disposal of the present petition, to stay further implementation, execution and operation of the impugned order dated 05.12.2022 passed below Exh.290 in Regular Civil Suit No.3069/1994 pending in the Court of learned Senior Civil Judge, Rajkot; at Annex-'A' (Colly) (d) Pending admission, hearing and final disposal of the present petition, to direct the learned Senior Civil Judge, Rajkot to draw decree as per compromise below Exh.290 in Regular Civil Suit No.3069/1994; at Annex-'A' (Colly) (e) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court." 7. This Court has considered the submissions advanced by the learned advocates appearing for the respective parties and the orders passed by the concerned Court below Exh.38 and 40 wherein the concerned Court permitted the power-of-attorney holder Valjibhai Laxmanbhai Dodia to be added as plaintiff under Order 1 Rule 10 of Civil Procedure Code. The plaintiff expired on 22.3.2016 and the legal heirs of the plaintiff preferred an application below Order 22 Rule 3 of the Civil Procedure Code for permitted them as plaintiffs in the suit proceeding which came to be rejected by the concerned court below Exh.268 duly produced at page 46 dated 15.12.2017. The plaintiff expired on 22.3.2016 and the legal heirs of the plaintiff preferred an application below Order 22 Rule 3 of the Civil Procedure Code for permitted them as plaintiffs in the suit proceeding which came to be rejected by the concerned court below Exh.268 duly produced at page 46 dated 15.12.2017. The said order was subject matter of challenge before this Court by filing Special Civil Application No.22992 of 2017 which came to be quashed and this Court by order dated 29.4.2022 permitted the legal heirs of deceased Valjibhai Laxmanbhai Dodia to be joined as legal heirs of the plaintiff Valjibhai Laxmanbhai Dodia in Regular Civil Suit No.3069 of 1994. 8. For the aforesaid reasons, the Court below while considering the application filed by the legal heirs of Valjibhai Laxmanbhai Dodia and the defendants seeking decree in terms of settlement and ought to have examined the application preferred by the applicant jointly below Exh.290 for decreeing the suit in terms of compromise agreement as stated above under Order 23 Rule 3 of the Civil Procedure Code was required to be passed from time to time as referred above. The power-of-attorney holder Valjibhai Laxmanbhai Dodia is permitted to be added as plaintiff in the Regular Civil Suit No.3069 of 1994 by order dated 29.4.2022 and this Court permitted the legal heirs of Valjibhai Laxmanbhai Dodia to be joined as plaintiff in their capacity of legal heirs of Valjibhai Laxmanbhai Dodia. The order impugned is required to be quashed and set aside and the concerned Court may examine the application below Exh.290 seeking decree in terms of compromise decreeing in terms of compromise arrived at between the parties considering the facts that the legal heirs of Valjibhai Laxmanbhai Dodia are permitted to be joined as plaintiff in the suit proceedings and also in view of the fact that the defendants herein i.e. Santilal Jadavji Jagani has also filed an affidavit which is duly produced at page No.125 confirming the settlement between the parties. Before parting this Court deems it fit to produce on record the affidavit filed by the respondent - original defendant which is duly produced at page 125 and relevant paragraphs reads thus :- "XXX XXX XXX 3. Before parting this Court deems it fit to produce on record the affidavit filed by the respondent - original defendant which is duly produced at page 125 and relevant paragraphs reads thus :- "XXX XXX XXX 3. I state and submit that thereafter, I have entered into a compromise agreement with the petitioners and the same was filed with my consent under Ex.290 in the above mentioned civil suit, which came to be rejected by the impugned order. 4. I state and submit that I have voluntarily accepted the terms and conditions of the settlement as put before the Civil Court vide Exh. 290, and the same is on my own record, wish and volition and without any threat or coercion. 5. I state and submit that as per the terms of the agreement, I have no objection if the above mentioned sale deed dated 01.10.1994 along with the power of attorney dated is cancelled and the decree as prayed for in the civil suit is recorded. The deponent hereby reiterates that whatever is stated by the petitioners in the application for compromise at Ex. 290 is true and correct." 9. For the aforesaid reason, the present petition is partly allowed. As stated above, the order dated 5.12.2022 passed below Exh.290 in Regular Civil Suit No.3069/1994 is hereby quashed and set aside. The application below Exh.290 be decided afresh taking into consideration the observations made by this Court as referred above, after giving opportunity of hearing to respective parties. The Court below taking into consideration in view of above shall decide the application preferred below Exh.290 preferably within a period of four weeks from the receipt of this order. The petition stands partly allowed. Direct service is permitted.