- (1.) S. K. Singh, J. By means of this writ petition, the petitioners has sought relief of quashing the judgment and order dated 27-10-1988 (Annexure 7 to the Writ Petition) passed by the District Judge, Allahabad.
(2.) THE respondent No. 1 filed a suit in the Court of Civil Judge, Allahabad against Pachai, the father of the petitioner, the petitioner, her mother Smt. Kaushalya and respondents No. 2 to 4 for specific performance of contract on the basis of agreement to sale said to have been executed in her favour by Pachai. THE aforesaid suit was contested by Pachai and other defendants. THE execution of agreement to sale was denied. THE trial Court dismissed the suit but the appeal filed by respondent No. 1 was allowed that the lower appellate Court. Against the judgment and decree passed by lower appellate Court, the petitioner and the respondents No. 2 to 4 and the mother of petitioner Smt. Kaushalya filed Second Appeal before this Court which was registered as Second Appeal No. 165 of 1979. THE appeal was admitted and the execution of the decree passed by the learned District Judge was stayed. It appears that Pachai, father of the petitioner died and now the petitioner and her mother Smt. Kaushalya who is a divorced lady remained as successor to Pachai. It is said that the interest of the petitioner and her mother Smt. Kaushalya was being looked after by the respondents No. 2 and 3 of the present writ petition who are the first cousins of the petitioner. It has been pleaded that the respondent Nos. 1 and 4 taking advantage of situation filed a compromise in Appeal No. 165 of 1979 which was signed by the respondents No. 1 and 3. THE said compromise, was not signed by the petitioner and her mother Smt. Kaushalya. By the said compromise, it was agreed that the suit of respondent No. 1 be decreed for plot No. 157 for the extent of 2/3rd while remaining 1/3rd of the plot shall remain in possession of respondents No. 2 and 3. It was further agreed that the suit with regard to plot No. 812/1180 shall stand dismissed and the respondent No. 4 shall remain owner thereof. Some further terms were incorporated in the said compromise. THE said compromise as was filed before this Court was sent for verification to the learned District Judge. It appears that in the Court below after noting the verification, the file was sent back to this Court, upon which, by the judgment and decree dated 4-8-1981, the Second Appeal was decided in terms of compromise, copy of the compromise application and the judgment of this Court dated 4-8-1981 has been annexed as Annexures 1 and 2 to this writ petition. In the meantime, after the death of Smt. Kaushalya, the petitioner succeeded to her interest also. When the compromise decree was put in execution by the respondent, it is said that on receipt of notice from the executing Court, the petitioner came to know about the compromise decree upon which, she moved an application under Section 151, C. P. C. for recalling the compromise decree on the ground that same has not been signed by her, or her mother Smt. Kaushalya and therefore, the appeal could not have been decided in terms of compromise so far as their shares are concerned. On the application, the Stamp Reporter made a report that as the application amounts to review of the judgment and decree, the petitioner is liable to pay Court-fee on the valuation of the appeal which came as Rs. 4,000. Although the petitioner filed objection against that report, but this Court did not agree with the petitioner's contention and by order dated 5-11-1985, directed the petitioner to pay the Court fee. As the petitioner did not pay the required Court fee, the petitioner's application was dismissed by the order dated 13-3- 1987 (Annexure 4 to the writ petition ). In the execution proceedings which was going on before the executing Court, the petitioner raised a plea that as neither she nor her mother, was the signatory to the compromise, it is not binding on them and the compromise decree cannot be executed against their interest. THE executing Court rejected the petitioner's application mainly on the ground that the executing Court cannot go behind the decree. Against the order dated 20-9-1988 (Annexure 6 to the writ petition), a revision was filed by the petitioner which was also dismissed by order, dated 27-10- 1988 which has been impugned in this petition. Shri P. N. Saxena, leaned Senior Advocate assisted by Shri Amit Saxena on behalf of petitioner and Shri R. S. Misra, learned Advocate assisted by Shri I. N. Singh on behalf of respondents have been heard at length. It has been submitted by learned Counsel for the petitioner that there is no dispute about the fact that neither the petitioner nor her mother Smt. Kaushalya were the signatory to the compromise and therefore, on the basis of the said compromise, the appeal could not have been finally decided affecting their interest. It has been further argued that although application moved by the petitioner for recalling of the order as was passed by this Court finally deciding the appeal in terms of compromise, was rejected but as the petitioner and her mother was not party to that compromise and they were not signatory, in no case, the decree can be executed against their interest. Learned Counsel for the petitioner has brought to my notice the provisions as contained in Order XXII Rule 3 Code of Civil Procedure which is being quoted below: 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 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.
(3.) BY referring the aforesaid provisions, the learned Counsel has laid emphasis on the word "in writing and signed by the parties". As the compromise admittedly do not bear the signature as pleaded by the petitioner and, therefore, it has been argued that the suit could not have been finally terminated on the basis of the aforesaid compromise and in the alternative, it cannot bind the petitioner making it executable against her/their interest. The decree not being in consonance with the provisions of Order XXIII, Rule 3 C. P. C. , it cannot be said to be a valid decree. Learned Counsel for the petitioner in support of aforesaid contention has cited decision as reported in Kandhe and othersv. Jhanjan Lal and others,air 1936 All. page 1 and Anadi Krishna Duttav. Priya Sankar Mujumdar and others,air 1916 Cal. 479. Learned Counsel for the respondents, in response to the aforesaid submission has argued that in the Second Appeal, the compromise which was filed on behalf of the parties was duly signed by the Counsel who were appearing from both sides and when the matter was sent for verification, in the Court below also, it was verified by learned Counsel who appeared at the time of verification and therefore, it has been contended that the compromise decree which has been passed after due verification by leaned Counsel appearing on behalf of both parties, cannot be said to be illegal in any manner as the Court was fully empowered to pass the decree. It has been further argued that in the Second Appeal where the judgment and decree was passed on the basis of compromise, the petitioner has applied for setting aside the decree on the same plea that the compromise do not bear signature of either the petitioner or her mother but for whatsoever reason, ultimately this Court has rejected the petitioner's application and thus, now it is not open to her to challenge the validity of the decree the executing Court on the same ground that the petitioner is not the signatory to the compromise. Leaned Counsel argued that the judgment and order even by consent or default is as effective and estoppel between the parties as the judgment whereby the Court exercised its mind and decided the case. The provisions as contained under Rule 3-A of Order XXIII C. P. C. has also been referred which shows that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. In support of the aforesaid submission, learned Counsel for the respondents has placed reliance on the decision reported in Smt. Mohan Baiv. Smt. Jai Kishan and others,air 1988 (Raj) 22, and Gaya Prasad Singhv. Sheo Murat Singh and others,1981 (7) ALR 501. Lastly it has been argued that the executing Court cannot go behind the decree. In support of this contention, learned Counsel has placed reliance on decision reported in C. Gangacharanv. C. Narayan,2000 (38) ALR 262, and Bhawarlal Bhandariv. Universal Heavy Mechanical Lifting Enterprises,. (1999) 1 SCC 558. Reliance has also been placed on the decision reported in Shailendra Narayan Bhanja Deov. The State of Orissa,air 1956 SC 346, for the proposition that even the order passed by consent or default is effective as an estoppel between the parties as a judgment where the Court has exercised its mind on a decided case.;