ORLANDO VICENTE BOSSUE FARIA Vs. JOAQUINA FALCAO

JUDGEMENT

(1.) THIS second appeal arises from the judgment and Decree passed by the first Appellate Court on 5-7-1994, whereby the first Appellate Court has set aside the consent Decree passed by the trial Court on 10-12-1990. Only question which arises for consideration in this appeal is whether the lower Appellate Court was justified in setting aside the decree of the trial Court for alleged breach of Order 20, Rule 5-A of C. P. C. ignoring the provisions contained in section 96 (3) of C. P. C.

(2.) THE facts, in brief, are that the appellant herein filed a Regular Civil Suit bearing No. 105/90, which was fixed for filing of the written statement on 22-10-1990 before the trial Court. On the said day, consent terms were placed on record by the appellant herein which, however, were not acceptable to the respondent, as it is apparent from the order recorded by the trial Court on the said consent terms. The matter was accordingly adjourned and fixed for written statement of the respondent on 10-12-1990 on which date, the respondent filed an application wherein the respondent stated that the terms and conditions mentioned in the consent terms dated 22-10-1990 were acceptable to her and she would vacate the suit house within a period of 11 months as stated therein, after complying with all other terms and conditions. While accepting the same, the trial Court passed judgment and decree based on the consent terms on the very day. As per the compromise terms, the respondent was required to vacate the suit premises within a period of 11 months from the date of the consent decree. Since the respondent did not comply the said consent decree, the appellant herein filed execution proceedings being Execution Application No. 8/92. When the respondent was served with the notice in the said execution proceedings, it was objected to by the respondent by filing her reply on 16-8-93 and, thereafter, on 4-3-1994 the respondent herein preferred an appeal being Regular Civil Appeal No. 23/94 before the District Court at Margao. The Addl. District Judge, Margao who heard the said appeal and allowed the said appeal on the sole ground that the trial Court had not complied with the provisions of Order 20, Rule 5-A of C. P. C.

(3.) SHRI A. P. Lawande, learned Advocate appearing on behalf of the appellant while assailing the impugned judgment and decree submitted that the consent decree passed by the trial Court was not appealable decree in view of section 96 (3) of C. P. C. and, therefore, it was not obligatory upon the trial Court to comply with Order 20, Rule 5-A C. P. C. which provides that in a case the order which is subject to appeal and parties are not represented by Lawyers, the trial Court should inform the parties present in the Court as to the Court to which an appeal lies and the period of limitation for filing of such appeal and place on record the information so given to the parties.