NADIRSHA HIRJI BARIA Vs. NIRANJANKUMAR ALIAS NIRESHKUMAR DHARAMCHAND SHAH

JUDGEMENT

(1.) In this revision application following three questions have been raised:

(2.) A suit being Civil Suit No. 66 of 1980 was filed by the opponents herein (original plaintiffs) in the court of Civil Judge (S.D.). Navsari on 14/03/1980 praying for declaration that they had a right of way over the land specified therein and the way was being used for bringing light vehicles like Matador Tempo handlorry etc. and further prayed that the defendants be restrained from causing obstruction in their right of way. The petitioners original defendants appeared in the suit filed their written statement and resisted the same. Ultimately on 2/05/1980 consent terms were filed in the court. The defendants agreed that in the right of enjoyment of the passage by the plaintiffs they will not create any obstruction whatsoever. In terms of the compromise consent decree was passed by the court. It appears that some time thereafter the defendants started making construction of a wall in the passage so as to block some portion of the passage with the result that the light vehicles could not be brought in. Therefore the plaintiffs filed an Execution Application No. 38 of 1980 on 1/09/1980 and prayed that the construction be removed and the defendants be restrained from obstructing the plaintiffs ill enjoying the fruits of the decree. The defendants appeared and objected to the execution of the decree. The trial court after hearing the parties rejected the objections and allowed the Execution Application by its judgment and order dated 30/01/1982 The petitioners original defendants have preferred this revision application against the aforesaid judgment and order passed by the trial Court.

(3.) It is undisputed that two of the plaintiffs (plaintiffs Nos. 2 and 3 and two of the defendants (defendants Nos. 2 and 3) themselves have not signed the compromise. However it is an admitted position that their respective advocates have signed the compromise. The plaintiffs have not made any grievance on this score. But it is argued by the counsel for the petitioners original defendants that since the compromise is not signed by two of the defendants personally it cannot be said to be in conformity with the provisions of Order 23 Rule 3 of the Code of Civil Procedure and hence the consent decree passed by the trial court on the basis of such a compromise cannot be executed This contention be now examined.