Judgment

SEN, J.:- The controversy in this appeal by special leave centres around the words in writing and signed by the parties added to Order XXIII, R. 3 of the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 1976 and the precise question is whether when a settlement is arrived at between the parties in appeal before the Court, the compromise cannot be given effect to under Order XXIII, R. 3 of the Code unless the terms of the compromise are embodied in an agreement in writing.

2. First as to the facts. The respondent herein Chatur Bhuj Goel, a practising advocate at Chandigarh first lodged a criminal complaint against Colonel Sukhdev Singh, father of the appellant, under S. 420 of the Indian Penal Code, 1860 after he had served the respondent with a notice dated July 11, 1979 forfeiting the amount of Rs. 40,000/- paid by him by way of earnest money, alleging that he was in breach of the contract dated June, 4, 1979 entered into between Colonel Sukhdev Singh, acting as guardian of the appellant, then a minor, and the respondent, for the sale of a residential house at 1577, Sector 18D, Chandigarh for a consideration of Rs. 2,85,000. In terms of the agreement the respondent was to pay a further sum of Rs. 1,35,000/- to the appellants father Colonel Sukhdev Singh by July 10, 1975 when the said agreement of sale was to be registered and vacant possession of the house delivered to him, and the balance amount of Rs. 1,10,000/- on or before January 31, 1980 when the deed of conveyance was to be executed. The dispute between the parties was that according to Colonel Sukhdev Singh, there was failure on the part of the respondent to pay the amount of Rs. 1,35,000/- and get the agreement registered, while the respondent alleged that he had already purchased a bank draft in the name of the appellant for Rs. 1,35,000/- on July 7, 1979 but the appellants father did not turn up to receive the same. The respondent met him at his residence at Chandigarh on the morning of July 16, 1979 when it was agreed that they would meet in the District Court precincts later in the day for the purpose of registration of the agreement, but again the appellants father did not turn up. Although the learned Additional Chief Judicial Magistrate by order dated October 31, 1975 dismissed the complaint holding that the dispute was of a civil nature and no process could issue on the complaint, a learned single Judge of the High Court by his order dated February 11, 1980 set aside the order of the learned Additional Chief Judicial Magistrate holding that the facts brought out clearly warranted an inference of dishonest intention on the part of Colonel Sukhdev Singh and accordingly directed him to proceed with the trial according to law. Aggrieved, Colonel Sukhev Singh came up in appeal to this Court by special leave.

3. This Court by its order in Criminal Appeal No. 595/80 dated Sept. 2, 1980 reversed the judgment of the High Court on the ground that the dispute was purely of a civil nature and the criminal process could not have been employed for the purpose of coercing the appellants guardian Colonel Sukhdev Singh to specifically perform the contract. It was directed that Colonel Sukhdev Singh should return the earnest money of Rs. 40,000/- to the respondent on or before October 5, 1980 and in the meanwhile, the respondent was at liberty to file a suit for specific performance of the contract, if so advised. It was observed that the return of the said amount of Rs. 40,000/- by Colonel Sukhdev Singh would be without prejudice to the rights and contentions of the parties, including the right of the respondent to claim specific performance of the contract, if he was in law otherwise so entitled. Pursuant thereto, the appellants guardian Colonel Sukhdev Singh refunded the amount of Rs. 40,000/- to the respondent. On October 3, 1980 the respondent instituted the suit in the Court of the District Judge, Chandigarh, out of which this appeal ar