Masud, J. -
(1.)This appeal has been directed against a judgment and order of A. K Sarkar J. dated September 24, 1973, whereby, the learned Judge refused to record the terms of settlement, filed in suit No. 276 of 1971. The facts of the case may briefly be stated.
(2.)Two brothers Nawab Ali Hyder Khan and Ali Asgar Khan were the joint owners of premises No. 8/2, Palm Avenue, Calcutta. On or about March 15, 1958 they executed an agreement for sale of the said premises with one Sailaja Ranjan Chaki, respondent No. 6, on terms and conditions, set out in the agreement. Prior to the said date of agreement, Title Suit No. 284 of 1951 was pending in the Court of Subordinate Judge, Alipore, between one Indranath Nandy, the Mortgagee, and the said two brothers, the mortgagors in respect of a mortgage deed dated June 29, 1944. Ali Hyder Khan died intestate in 1963 leaving behind him Musst. Hossenara Begum, Ali Safdar Khan, Ali Sarwar Khan, Ali Dewar Khan and Mst. Sayedunessa Begum, the respondents Nos. 1 to 5. By a deed of assignment dated April 22, 1966, the said Sailaja Ranjan Chaki for a valuable consideration transferred absolutely to the appellant his right, title and interest under the said agreement for sale dated March 15, 1958 in respect of the said premises. The appellant, thereafter, instituted a suit in this Hon'ble Court being suit No. 1322-A of 1966 for specific performance of the said agreement for sale. The said suit was ultimately decreed on May 30, 1969 on compromise on the terms mentioned in paragraph 5 of the appellant's petition before the trial Judge. One of the terms of the decree in favour of the appellant is as follows:--
"The plaintiff (appellant) shall also be at liberty to release the original deed of conveyance in respect of the said premises dated June 29, 1944 in favour of the predecessors of the defendants Nos. 2 to 6 and defendant No. 7 in their joint names from Sri. B. N. Ghosh who is claiming a lien on the original deed of conveyance in respect of his dues amounting to Rs. 81,600/- against defendants Nos. 2 to 7 at the costs of defendants Nos. 2 to 7 and also out of the balance consideration money as stated in paragraph 6 (b) hereinabove retain all sum payable to or to be payable to the said B. N. Ghosh in order to make the plaintiff's title on the property, clear, absolute and perfect".
(3.)Pursuant to the said compromise decree, the appellant released the subsisting charge on payment of Rupees 81,600/- to Mr. B. N. Ghosh and a deed of release was duly executed and registered on July 22, 1969. There was another term in the said compromise decree whereby the appellant is entitled to get credit for a sum of Rs. 65,000/-, being the expenses incurred, as set out in the agreement for sale dated March 15, 1958, in favour of Sailaja Ranjan Chaki. Thereafter, the appellant on or about June 30, 1969 called upon the respondents 1 to 5 and 7 to execute and register the conveyance of the said premises on receipt of the balance of the consideration money, alleged to be a sum of Rs. 48,400/-. But the vendors being respondents Nos. 1 to 5 and 7 refused to do the same. The appellant, thereafter, came to know that a mortgage decree in the said Title Suit No. 284 of 1951 was passed and in execution of the said decree the said premises were sold in auction at the instance of the mortgagee on March 15, 1952 for a sum of Rs, 2,01,000/-. The respondents Nos. 9, 10 and 11 became the auction purchasers. The date of confirmation of sale was fixed on April 16, 1962, But on April 16, 1962, the mortgagors, the said Ali Hyder Khan, since deceased, and the said Ali Asgar Khan, the respondent No. 7, deposited the entire decretal amount along with the execution cost and 5% of the bid money as compensation as required, under law for setting aside the said auction sale. In view of the said deposit, the learned Subordinate Judge was pleased to set aside the auction sale and the execution case was disposed of by his order dated April 16, 1962. The mortgagee decree-holder withdrew all his dues from the Court. The said auction purchasers, however, moved this Hon'ble Court in revision whereupon the order setting aside the auction sale was reversed and the matter was remanded back to the learned Subordinate Judge with a direction for reconsideration of the matter. On remand, the matter was considered by the learned Subordinate Judge on the very day the said Alipore Court received the records i.e. on December 2, 1968 and the said subordinate Judge confirmed the sale. On July 2, 1969, Mr. Anilendra Nath Mitra a Solicitor of this Hon'ble Court, withdrew the sum of Rs. 2,11,050/-being the sale proceeds of the said premises and costs etc. on the basis of a power executed by one Dhirendra Nath Acharya who is alleged to be holder of a Power of Attorney from respondents Nos. 1 to 5 and 7. The appellant, having come to know all the aforesaid facts, instituted a suit being Title Suit No. 60 of 1970 in the Court of learned Subordinate Judge, Alipore against the heirs of late Ali Hyder Khan being respondents Nos. 1 to 5, against Ali Asgar Khan, respondent No. 7 and the said auction purchasers, respondents Nos. 9, 10 and 11 for a declaration that the appellant is the owner of the said premises under the decree passed by this Court on May 30, 1969. In the said suit No. 60 of 1970 the appellant made an application for an order restraining the auction purchasers from transferring the properties in any way or from taking possession thereof or for restraining the said Anilendra Nath Mitra from making any disbursement of the amount withdrawn by him. Thereafter, the learned Subordinate Judge allowed the appellant's prayer for Injunction against the auction purchasers but refused the prayer for temporary Injunction against Anilendra Nath Mitra. The auction purchasers preferred an appeal before the learned District Judge which was allowed on December 17, 1970. Against the said order the appellant moved an application in this Court in its civil revi-sional jurisdiction whereupon Amaresh Roy and A. K. De, JJ. were pleased to issue a Rule and granted an interim order of Injunction restraining the auction purchasers from transferring the said premises or from taking delivery of possession of the same. During the pendency of the said Civil Rule, the heirs of late Ali Hyder Khan, the respondents Nos. 1 to 5 instituted the present suit on June 23, 1971 against the appellant, Sailaja Ranjan Chaki, Ali Asgar Khan, Amar Kr. Roy a Solicitor of this Court and the auction purchasers for a declaration that the terms of settlement dated May 30, 1969 filed in the said Suit No. 1322-A of 1966 of this Hon'ble Court (Sm. Ajita Debi v. Sailaja Ranjan Chaki) are null and void and not binding on the heirs of Ali Hyder Khan and Ali Asgar Khan and as such the said consent decree should be set aside. In the meantime, the appellant was advised to settle the present suit and in fact the terms of settlement were arrived at between the appellant and the plaintiffs in the present suit i. e. heirs of late Ali Hyder Khan. Terms of settlement are as follows:
"1. The suit is withdrawn without liberty to file a fresh suit on the same cause of action. 2. Each party to bear and pay his own costs. 3. All ad interim orders are vacated."
The said terms of settlement were filed before Sarkar, J. The learned Judge by his judgment and order dated September 24, 1973 has refused to record the said terms of settlement. The present appeal has been filed against the said order.