Hazra, J. - (1.)This is an application for an order that the terms of settlement being annexure "B" to the petition be filed and a decree may be passed in accordance with the terms of settlement. This application has been made under Order 23, Rule 3 of the Code of Civil Procedure by defendant No. 1 Bejoy Kumar Daw, under the following circumstances. This partition and administration suit was instituted on February 7, 1961. During the pendency of the suit all parties agreed to settle the suit and on August 14, 1971 a settlement was arrived at between the plaintiffs on the one hand and the defendants on the other. Under this agreement defendants Nos. 1 and 2 were declared as the sole and absolute owners of premises No. 11, Beniapara Lane, Calcutta-35 in equal shares and that the plaintiffs have no right, title and interest thereto. This agreement is admitted by all parties to this suit.
(2.)The petitioner's case is that after this agreement, on August 16, 1971 the defendants Nos. 1 & 2 came to terms with regard to the partition between them of the said premises No. 11, Beniapara Lane, Calcutta-35 and they attended the office of Messrs. S.C. Roy Chowdhury & Co., Solicitors at No. 10, Old Post Office Street to record the said amicable settlement with regard to the partition of premises No. 11, Beniapara Lane, Calcutta-35 which was to be allotted to each of them under the settlement as aforesaid. On the same day, the terms as already agreed to by and between them were reduced into writing and typed in duplicate and one copy of the same was given to the defendant No. 2. Thereafter, on August 18. 1971, the defendant Nos. 1 and 2 attended the office of M/s. S.C. Roy Chowdhury & Co., and with some modification as to the original terms was agreed upon by which the defendant No. 2. Tulsi Charan Daw was given a right to occupy the room in the second floor for 7 years, where he is now staying in the portion allotted to defendant No. 1, Bejoy Kumar Daw. The said agreement with the said modification was thereupon signed by the defendant No. 1 Bejoy Kumar Daw and defendant No. 2 Ram Tulsi Daw and the said modifications were also initialled by both of them. A plan showing the demarcation in terms of the agreement was also signed by the defendants Nos. 1 and 2 on August 18, 1971.
(3.)The Solicitors for the defendant No. 1 informed M/s. R.L. Dutta & Co. the Solicitors for the plaintiff that the defendants Nos. 1 and 2 also agreed among themselves to partition the premises No. 11, Beniapara Lane as aforesaid and handed over a copy of the terms of settlement to be incorporated in the main terms of settlement. On August 25, 1971 M/s. R.L. Dutta & Co., Solicitors for the plaintiff forwarded a copy of the terms of settlement to M/s. Fox & Mondal the Solicitors for the defendant No. 1 and M/s. S.C. Roychowdury & Co. the Solicitors for the petitioner.