For passing a decree under Order 23 Rule 3 CPC, voluntary consent of the parties for the terms of compromise is essential.

SHIV NARAYAN DHINGRA,J.

.1. This suit was fixed for recording of statements of parties before framing of issues, on 4th October, 2005. On that day counsel for plaintiff, defendant no. 1, defendant no. 2 and defendants no. 3 and 4 were present and during the course of hearing, the parties agreed to enter into a compromise for settlement of the dispute raised in the suit. The terms of settlement agreed between the counsel of parties during the course of hearing were got recorded by the counsel and formed part of the order dated 4th October, 2005. After recording the terms of settlement, this Court observed that the parties shall abide by the terms of the settlement as the same were commonly accepted by each one of them. The Court was informed that the parties shall make a written compromise application on the basis of agreed terms as recorded in the order and the case was adjourned for disposal of the compromise application on 10th November, 2005. On 10th November 2005 counsel for parties appeared and sought more time to file the required application and the case was adjourned to 14th December, 2005. On 14th December, 2005 again adjournment was sought on the same ground and the matter was fixed for 21st February, 2006. It seems that on 21st February, 2006 again a short adjournment was sought and the matter was re-listed on 27th February, 2006. Till that day no application under Order 23 Rule 3 CPC was made by the parties and on that day also the matter was adjourned to 24th March, 2006. The matter was again adjourned to 17th April, 2007 and then on 1st .May, 2006. Till 1st May, 2006 parties did not file application under Order 23 Rule 3 CPC and rather raised a dispute about the interpretation of the terms of the compromise recorded in the order dated 4th October, 2005. The controversy continued, the matter was adjourned for the one or the other reason and was ultimately fixed on 8.12.2006 before the same Bench before whom the parties had entered into the compromise. In between other interlocutory applications were also made. While entertaining the applications, this Court observed that Counsel appearing for plaintiff, defendant no. 1 and defendant nos. 3 and 4 respectively stated that they had no objection to the terms recorded in the order dated 4th October, 2005. However, there was dispute in respect of implementation of the agreed terms and counsel for Defendants No. 3 and 4 wanted that his suggestions regarding implementation be taken into consideration while passing final order. Counsel for defendant no. 2 submitted that price of the portion of defendant no. 2 was fixed in the settlement dated 4th October, 2005 and payments were to be made within a stipulated time. However, defendant no. 1 and plaintiff took advantage thereof to the prejudice of defendant no. 2. Plaintiff and defendant no. 1 submitted that they were to make payment only when possession was delivered to them by defendant No.2. Considering the controversy, this Court observed that in case of fault, intentional or otherwise, attributed to a party, the Court could grant interest or such other compensation as the Court may deem fit to balance the equities between the parties. The parties however, still did not file an application under Order 23 Rule 3 CPC. The counsel for plaintiff therefore, urged that this Court should decree the suit in terms of the settlement arrived at between the parties on 4th October, 2005 without an application under Order 23 Rule 3 CPC by the parties. It was submitted that the Court may pass an appropriate order awarding suitable interest or compensation for the period of delay in making the payments as recorded in order dated 4.10.2005. The Counsel for defendant no. 2 however, did not agree to this. The counsel for defendants no. 3 and 4 also stated that there has been problems in respect of transfer of shares. The matter was again heard on 5th July, 2007 and it became clear during arguments that counsel for defendants no. 2,