ISRANI, J. - (1.) THIS revision petition has been filed against the order dated 20. 1. 83 passed by the learned Additional District Judge No. 2, Alwar in Civil Misc. Appeal No. 6/78, whereby the application of the petitioner for recording compromise between the parties was rejected.
(2.) THE plaintiff non-petitioner filed a suit for specific performance against the defendants No. 2 and 3 in respect of the residential property which was alleged to have been sold to the plaintiff for Rs. 5200/, in respect of which Rs. 2000/- were paid as advance. An application for issue of ad-interim injunction order under Order 39 Rules 1 & 2 C. P. C. was also filed by the non-petitioner, which was granted. Against this, an appeal was filed by the petitioner, which is pending before the learned Additional Distt. Judge No. 2, Alwar. During the pendency of the above appeal, an application was filed on 21. 12. 81 stating that the parties have arrived at a compromise which was recorded in writing containing the fact that the plaintiff non-petitioner has received Rs. 3000/- against his claim in the suit from Shri Chaturbhuj, father of petitioner Radha Kishan. THE plaintiff filed reply to the same and raised some objections stating, inter alia, that the alleged compromise was entered into between him and Shri Chaturbhuj father of the defendant and it was not a compromise between the parties in the suit. However, he did not deny the execution of the compromise. Learned Addl. district Judge vide its order dt. 20. 1. 83 rejected the application filed by the petitioner on the ground that under the provisions of Rule 3 of Order 23, C. P. C. it was mandatory that the compromise should have been entered into in writing between the parties in the suit and since this compromise was not executed between the parties to the suit, it cannot be said that the same has been entered into between the parties. None has appeared on behalf of the non-petitioners Mr. N. K. Mallo, learned counsel for the petitioner contends that it is admitted by the non-petitioner that he did enter into a compromise regarding the property under suit and received Rs. 3000/- as compensation from the father of the defendant. It is further submitted that the plaintiff non-petitioner could not have any objection to the compromise as he has already received compensation and the compromise was filed along with the application by the petitioner- defendant, who is son of Chaturbhuj, who has signed the compromise in the presence of several persons of the area. It is further submitted that since the defendant accepts that this compromise was entered in to between the parties, the learned Additional District Judge should not have rejected the compromise. It is further pointed out that rule 3 of Order 23 C. P. C. clearly provides that apart from the compromise which may be executed by both the parties in writing, if there is a compromise by which the defendant satisfies the plaintiff in respect of the whole or part of the subject matter of the suit, the court should order such agreement, compromise or satisfaction to be recorded and pass a decree in accordance there with. A bare reading of rule 3 of Order 23 C. P. C. makes it clear that duty to decide to the question whether a party has adjusted, compromised or not, has been left the court recording the compromise. Under the provisions of Rule 3 the enquiry admits of two questions being examined by the court; (i) whether there has been adjustment or compromise, and (ii) whether such agreement or compromise is lawful ? Under rule 3 of Order 23 C. P. C. the court is bound to see if the allegations of the parties that the suit has been adjusted or not, is true. Therefore, a proviso has been provided to rule 3, which makes it clear that where it is alleged by one party and denied by the other that adjustment or satisfaction has been arrived, the court shall decide this question. Reliance has been placed on Ramjanam Tiwari & Dors. vs. Bindeshwari Bai (l), that the court had complete jurisdiction to make consequential order to give effect to the terms of the compromise and to record the same. The question whether a particular terms of compromise relates to the subject matter of the suit has to be answered on the frame of the suit, the relief claimed and the matters which arose for decision in the case on the pleadings of the parties. In this case the petitioner has filed a compromise, the execution of which is not denied by the plaintiff-non-petitioner also. He has also received Rs. 3000/- as compensation from the father of the petitioner with regard to the property involved in the suit. Therefore, as per the provisions of rule 3 it was mandatory that chance should have been given to the defendant petitioner to satisfy the court that the plaintiff has accepted the compensation with regard to the property involved in the suit in respect of the whole or any part thereof. Original suit is pending in the trial Court and the learned Additional District Judge is ceased only with miscellaneous appeal arising out of issue of ad-interim order; It will be, therefore, in the fitness of things that the trial court should decide the matter regarding compromise, where the suit is pending between the parties. In the result, the revision petition is allowed. The impugned order dated 20. 1. 83 is set-aside and it is directed that the learned Additional Distt. Judge No. 2 Alwar shall send the compromise along with the application and the reply, filed by the parties to the learned trial court to decide the matter in accordance with the provisions of rule 3 of Order 23 C. P. C.
(3.) THE will be no order as to costs , .;