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2010 Supreme(MP) 605
IN THE HIGH COURT OF MADHYA PRADESH
N.K. Mody, J.
Arjun Singh
Vs.
Vardibai and Ors.
S.A. No. 127/1991
Decided On: 11.08.2010
The main legal point established in the judgment is that the compromise application was filed by the Appellant and Respondent No. 9 jointly, and subsequent conduct of the Appellant raised doubts. The court held that no illegality was committed by the learned Appellate Court in passing the impugned order.
Headnote:
Compromise - Civil Appeal - Code of Civil Procedure - Order 1 Rule 3(a), Order 23 Rule 3 - The court discussed the validity of the compromise, the authority of the advocate to file the application, and the legality of the impugned order. The court found that the compromise application was filed by the Appellant and Respondent No. 9 jointly, and subsequent conduct of the Appellant raised doubts. The court held that no illegality was committed by the learned Appellate Court in passing the impugned order.
Fact of the Case:
The suit was filed by the Appellant and Respondent Nos. 8 and 9 against Respondent No. 10 and others, alleging that the sale deed of the suit property was null and void and praying for possession. The suit was decreed, but during the appeal, compromise applications were filed and allowed, leading to the present appeal.
Finding of the Court:
The court found that the compromise application was filed by the Appellant and Respondent No. 9 jointly, and subsequent conduct of the Appellant raised doubts. The court held that no illegality was committed by the learned Appellate Court in passing the impugned order.
Issues: The issues included the validity of the compromise, the authority of the advocate to file the application, and the legality of the impugned order.
Ratio Decidendi: The court found that the compromise application was filed by the Appellant and Respondent No. 9 jointly, and subsequent conduct of the Appellant raised doubts. The court held that no illegality was committed by the learned Appellate Court in passing the impugned order.
Final Decision: The appeal filed by the Appellant was dismissed.
N.K. Mody, J.
1. Being aggrieved by the order dated 17/12/90 passed by I Additional District Judge, Mandsaur in Civil Appeal No. 45-A/87 and decree dated 21/12/90 whereby the judgment and decree dated 19/12/79. passed by Civil Judge, Class-1, Mandsaur in Civil Suit No. 21-A/74 whereby the decree passed in favour of Appellant and Respondent Nos. 8 and 9 was set aside, the present appeal has been filed.
2. The appeal was admitted for final hearing by this Court vide order dated 06/12/91 on the following substantial question of law:
Whether the learned lower Appellate Court committed error of law in rejecting the application of the Appellant to add the State Government as a party in view of amendment in Order I Rule 3(a) of Code of Civil Procedure?
3. Vide order dated 30/06/10 following additional substantial questions of law were framed:
Whether the lower Court erred in not dismissing the appeal due to non-impleading the Respondent Samandbai? Whether the alleged compromise of 5/12/1983 could he recorded after the same was rejected by the Court? Whether the lower Court acted in accordance with Order 23 Rule 3 in recording compromise despite the protest of the Appellant and wrongly denying him the opportunity to lead evidence?
4. Mr. Mangesh Bhachawat. Learned Counsel for Respondent Nos. 1 to 7 at the outset submits that the appeal itself is not maintainable in view of bar contemplated under Section 96(3) Code of Civil Procedure. In reply learned Counsel for the Appellant submits that since the appeal was disposed of by the learned Appellate Court upon compromise application and the validity of the compromise is under challenge, therefore, the appeal is maintainable. For this contention reliance is placed on a decision in the matter of Kishun @ Ram Kishun (Dead) th. Lrs. v. Behari (Dead) th. Lrs.. JT 2005(6) SC 614 wherein one party set-up compromise and other party disputing. Hon'ble Apex Court held that the Court has to adjudicate if there was compromise or not and pass a decree and hence, it is appealable.
5. In view of the aforesaid position of law this Court is of the view that since the validity of the compromise itself is under challenge, therefore, the appeal filed by the Appellant is maintainable, hence the objection raised by the Counsel for the Respondent Nos. 1 to 7 stands rejected.
6. Short facts of the case are that the Appellant and Respondent Nos. 8 to 10 are real brothers. Respondent Nos. 1 to 7 are the legal representatives of deceased Kanhaiyalal. The land in dispute is an agricultural land situated at village Babdikheda, Tehsil Garoth. The suit was filed on 20/11/74 by the Appellant and Respondent Nos. 8 and 9 against the Respondent No. 10 and mother of Appellant Nos. 8 to 10 Smt. Samandbai and also against Kanhaiyalal whose legal representatives are Respondent Nos. 1 to 7 alleging that Madhavsingh was the father of Appellant and Respondent Nos. 8 to 10 and husband of Smt. Samandbai. It was alleged that Appellant and Respondent Nos. 8 to 10 and Samandbai are the legal representatives of deceased Madhavsingh. It was alleged that Madhavsingh was the owner of suit land and after his death his legal representatives became Bhumiswami of the suit land. It was alleged that Samandbai and Respsondent No. 10 sold the suit property to Kanhaiyalal vide sale deed dated 03/06/72 for a consideration of Rs. 6,500/-. It was alleged that the sale deed was executed by deceased Samandbai in her personal capacity and also as natural guardian of Appellant and Respondent No. 9 alleging that the Appellant and Respondent No. 9 are minor. It was alleged that Appellant and Respondent No. 9 were major on the date of execution of sale deed i.e. 03/06/72. It was alleged that since Appellant and Respondent No. 9 and also Respondent No. 8 were having rights in the suit property being legal representatives of deceased Madhavsingh, therefore, Respondent No. 10 and Samandbai was having no right to transfer the suit property showing themselves a
