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High Court Of Calcutta
S. A. MASUD, S. K. MUKHERJEE
SM.AJITA DEBI - Appellant
Versus
MUSST.HOSSENARA BEGUM - Respondent
Appeal 4 Of 1974 (Suit No. 276 Of 1971)
Decided On : 06/09/1976
ORDER XXIII, RULE 3 - COMPROMISE OR ADJUSTMENT - VALIDITY - COURT'S DISCRETION - INTERESTS OF DEFENDANTS - TRANSPOSITION OF PARTIES - SUIT WITHDRAWAL - CONDITIONS - LAWFUL AGREEMENT OR COMPROMISE - INTERPRETATION.
Fact of the Case:
Plaintiff-appellant filed a suit for specific performance of an agreement for sale against the defendants-respondents. The suit was compromised and a decree was passed in favor of the plaintiff. The plaintiff then filed a suit to set aside the compromise decree and the defendants filed an application to record the terms of settlement. The trial court refused to record the terms of settlement and the plaintiff appealed.
Finding of the Court:
The court held that the trial court was right in refusing to record the terms of settlement because the compromise was not based on a lawful agreement or compromise within the meaning of Order XXIII, Rule 3 of the Code of Civil Procedure. The court also held that the plaintiffs could not be compelled to proceed with the suit under Order XXIII, Rule 1 if the interests of the defendants were adversely affected.
Issues: 1. Whether the compromise decree was based on a lawful agreement or compromise within the meaning of Order XXIII, Rule 3 of the Code of Civil Procedure? 2. Whether the plaintiffs could be compelled to proceed with the suit under Order XXIII, Rule 1 if the interests of the defendants were adversely affected?
Ratio Decidendi: 1. The court held that the compromise decree was not based on a lawful agreement or compromise within the meaning of Order XXIII, Rule 3 of the Code of Civil Procedure because it did not prove to the satisfaction of the court that the suit had been adjusted wholly or in part by any lawful agreement or compromise. 2. The court held that the plaintiffs could not be compelled to proceed with the suit under Order XXIII, Rule 1 if the interests of the defendants were adversely affected. The court reasoned that the plaintiffs' right to withdraw the suit was not unconditional or absolute and that the court could only exercise its jurisdiction in favor of the plaintiffs where the interests of the defendants were not adversely affected in any way if the plaintiffs were allowed to withdraw the suit.
Final Decision: The appeal was dismissed, but the parties were directed to bear their respective costs.
( 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
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