Consent and subsequent conduct of the party can validate a compromise even if the party did not sign the compromise.

JUDGMENT :

The 1st defendant in O.S.No.108/1999 on the files of Munsiff Court, Punalur, who is aggrieved by the decree and judgment in A.S.No.10/2020 dated 31.01.2023 on the files of the Sub Court, Punalur, assails the same in this Second Appeal filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure. The 1st defendant in the above Suit is the appellant and the plaintiff and other defendants are the respondents in this case.

2. I shall refer the parties in this appeal with reference to their status before the trial court, as 'plaintiff’ and 'defendants’ hereafter for easy reference.

3. Heard the learned counsel for the appellant/1st defendant as well as the learned counsel appearing for S.N.Sathy, the original plaintiff in the above Suit.

4. Perused the judgments under challenge and the documents placed by the learned counsel for the 1st defendant and the learned counsel for the original plaintiff.

5. The plaintiff instituted the Suit for fixation of boundary, recovery of possession and consequential injunction. During pendency of the Suit, a compromise was entered into and accordingly the decree was passed on 16.01.2019 in terms of the compromise.

6. The learned counsel for the 1st defendant assails the said compromise on the ground that the 1st defendant did not sign in the compromise which led to passing of the decree. According to the learned counsel for the 1st defendant, since the 1st defendant did not sign the compromise, the same should not bind the 1st defendant and as such, the compromise could not be acted upon. It is submitted that as per Order 43 Rule 1A(2) of the Code of Civil Procedure ('C.P.C' for short hereafter for easy reference), in an appeal against a decree passed in a Suit after recording a compromise or refusal to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not have been incorporated. Therefore, the learned counsel pressed for setting aside the compromise decree passed in the above Suit, where the 1st defendant is not a signatory.

7. The learned counsel for the plaintiff submitted that in the compromise entered into between the parties, the signatories are the plaintiff and the 5th defendant. The 5th defendant is none other than the husband of the 1st defendant. Apart from the plaintiff and the 5th defendant, Advocate Y.Joykutty, signed on behalf of the plaintiff and Advocate L.Thomas, signed on behalf of the whole defendants. It is also pointed out by the learned counsel for the plaintiff that even though the 1st defendant did not directly put signature in the compromise, the 1st defendant thereafter acted upon the same and received benefit out of the same. Therefore, the 1st defendant, in fact, accepted the compromise and in such view of the matter, the 1st defendant could not succeed in opposing the finality of the compromise and, therefore, this appeal must fail.

8. In view of the rival contentions, the substantial questions of law arise for consideration are :

(i) whether challenge against a compromise decree is permissible by way of an appeal ? If so, on what grounds ?

(ii) What is the legal effect of a compromise where a party did not sign ?

(iii) If a party, who did not sign a compromise, if acts upon the same subsequently, can he avoid the compromise decree thereafter merely on the ground that he did not put his signature in the compromise ?

9. While answering the above substantial questions of law, it is relevant to note that compromise was entered into on 16.01.2019 and the signatories in the compromise are the plaintiff, her counsel, 5th defendant and the counsel for the whole defendants. In so far as the question as to legality and validity of settlement/compromise, it is relevant to refer paragraphs 93, 100 and 104 of the decision of the Apex Court in Prasanta Kumar Sahoo v. Charulata Sah