SATYA NARAIN Vs. GANESH NARAIN
HIGH COURT OF RAJASTHAN
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JAGAT NARAYAN, J. -
(1.)THIS is a revision application by the plaintiffs against an order of the appellate court refusing to hold an enquiry under O. 23, r. 3 C. P. C. to find out whether the suit had been compromised by the parties before the judgment of the trial court had been delivered.
(2.)IN dealing with this case I shall proceed on the assumption that a compromise had really been arrived at between the parties before the delivery of judgment in the trial court, without expressing any opinion on the point. 22nd March, 1965 was fixed for the delivery of judgment. The judgment was delivered in favour of the defendants and against the plaintiffs dismissing the suit. It is not alleged that any oral or written application was made before the trial court before the delivery of judgment asking it to stay pronouncement of judgment as talks of compromise were going on between the parties. Against the decree an appeal was preferred by the plaintiffs on 30-3-65. IN the grounds of appeal no mention was made that any compromise had taken place between the parties. The appeal was posted for hearing for 11-3-66. On 19-2-66 the plaintiffs made an application alleging that the suit was compromised under an oral agreement between the parties before the delivery of the judgment by the trial court and that the agreement was being drafted when the judgment was pronounced and praying that an enquiry may be made under O. 23 r. 3 into this allegation. The appellate court declined to hold such an enquiry on the ground that once the judgment was pronounced by the trial court no such enquiry could be made if the allegation was that the suit was compromised before the delivery of judgment.
It is contended on behalf of the applicants before me that O. 23 r. 3 is applicable to a contingency where a suit is compromised before the delivery of judgment by the trial court. The argument is that under sec. 137 C. P. G. the appellate court has the same power as the trial court and once an appeal is filed in the appellate court and the appellate court becomes seized of the matter it can hold such an enquiry. O. 23 r. 3 runs as follows : "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, 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 a pass a decree in accordance therewith so far as it relates to the suit. "
It is not disputed that if a compromise takes place between the parties after the delivery of judgment by the trial court and before an appeal is filed that compromise has to be recorded under O. 21 r. 2 C. P. C. by the executing court. It is also not disputed that after filing of the appeal if any compromise takes place during the pendency of the appeal it is to be recorded by the appellate court under O. 23 r. 3 C. P. C. and in that case the expression "suit" covers an appeal. A perusal of the language used in O. 23 rule 3 shows that the satisfaction of that court is required where the suit is pending for the time being. When it is pending in the trial court an application should be made to the trial court before the judgment is pronounced. After the decree has been passed then the compromise has to be recorded by the executing court as the proceedings are then deemed to be pending before the executing court. Once an appeal is filed the matter in controversy is pending before the appellate court and an application under O. 23, r. 3 should be made before the appellate court.
I accordingly see no reason to interfere with the order of the appellate court and dismiss the revision application without any order as to costs. .
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