( 1 ) THE defendant has come up in appeal feeling aggrieved by the impugned order passed by a learned Single Judge of this Court sitting on the original side refusing to record a compromise under Order 23 Rule 3 of the CPC.

( 2 ) THE parties are brothers. The suit property is H. No. B-6, Jangpura Extn. , New Delhi. The plaintiff claiming himself to be the owner, has filed a suit for possession also for charges for use and occupation of a portion of the house. The case was posted for trial on 4th and 5th November 1993 when it was got adjourned. The parties were negotiating for mutual settlement.

( 3 ) ON 25. 2. 94, the defendant moved an application bearing IA No. 2207/94 alleging that the suit stood adjusted by lawful agreement/compromise as evidenced by the Memorandum of Understanding dated 3. 11. 93. However, the said application was got dismissed as not pressed. On 4. 5. 95, IA 4053/95 was moved for the recording of the same compromise as evidenced by the MOU dated 3rd November, 1993. The prayer was opposed by the plaintiff submitting that the MOU did not adjust the suit; the consideration for the MOU was executory which has stood frustrated; the agreement between the parties has fallen to the ground and hence it cannot be recorded as an adjustment of the suit.

( 4 ) LET the MOU be reproduced fully so as to appreciate its contents and implications. It is as under :-

MEMORANDUM OF UNDERSTANDING

THIS Memorandum of Undertaking is entered into on this 3rd day of November 1993 between Mr. Maharaj Kishan S/o. Late Dr. Ram Kishan, R/o. B-6, Jangpura Extension, New Delhi-14 on the one hand and Mr. Iqbal Kishan, S/o. Late Dr. Ram Kishan, R/o. B-6, Jangpura Extension, New Delhi-14 on the other.

1. The above parties are currently parties in Suit No. 954/89 (Maharaj Kishan Versus Iqbal Kishan) pending in the High Court of Delhi and correctly scheduled to be listed for trial on 4th November, 1993. The said suit is a suit for possession of property No. B-6, Jangpura Extension, New Delhi filed by Mr. Maharaj Kishan claiming to be the owner of the entire property.

2. The parties are urged that the difference between them is reflected in the record of the said suit can be mutually and amicably resolved and accordingly and accordingly they are agreed that subject to the said property being sold in the open market to a mutually acceptable buyer at a mutually acceptable price, then the sale consideration received therefore shall be apportioned in the following manner :-

(A) Sh. Maharaj Kishan - 64%

(B) Sh. Iqbal Kishan - 36%

THE parties are agreed that once a mutually acceptable buyer is located and mutually acceptable sale consideration is fixed with the said buyer, besides other formalities to be entered into with the buyer, the parties will move jointly an application in the above suit and obtain an order of Court regarding the respective shares in order that the sale transaction can be conveniently completed.

( 5 ) SALE of the property at the mutually acceptable market price. That this understanding is operative only till 30th of January, 1994. Only 2 copies of this Memorandum are being signed and will be retained by the respective advocates. If no settlement is (sic-as) contemplated herein takes place on or before the aforesaid date, the advocates shall destroy the copy retained by them. However, it will be open to both the parties to mutually and in writing instruct their advocates to extend the understanding for appropriate periods.

( 6 ) THE learned counsel for the defendant-appellant has submitted that the controversy between the parties had stood resolved by the MOU having been struck-down between the parties. The time was not of essence of the contract, as the ordinary rule is that in a contract for sale of immovable property time is not of essence of contract. Finding a suitable buyer is not an impossibility; if it could not be found earlier it can now be found out. Merely because the sale contemplated by the MOU could