Posted On by &filed under High Court, Jammu High Court.


Jammu High Court
Mst. Shameema vs Rehman Beigh And Ors. on 7 December, 2005
Equivalent citations: 2006 (2) JKJ 479
Author: N Singh
Bench: N Singh


JUDGMENT

Nirmal Singh, J.

1. This is Civil Second Appeal against the judgment and decree dated: 28.7.2001 passed by District Judge, Anantnag in Civil Appeal No. 2/appeal decided on 10.5.2001 arising out of judgment and compromise decree dated: 25.11.2000 passed by Munsiff, Anantnag in Civil suit No. 161.

2. Mr. Bhat, learned Counsel for the appellant submitted that the appeal filed by the respondent before the learned District Judge, Anantnag was barred by time. The learned District Judge was not competent to eternal and adjudicate the appeal without condoning the delay. He submitted that the respondent has not moved any application for condoning the delay alongwith the appeal.

3. I have heard learned Counsel for the appellant and given my thoughtful consideration to the submissions made.

4. The respondent herein when filed an appeal before the learned District Judge, Anantnag, alongwith the appeal, application for staying the operation of the impugned judgment was filed. On the application the following order was passed.

Issue notice to the respondents and call for the record from the court below.

Alongside an application has been filed for staying operation of the impugned decree. Issue notice to the other side to file the objections.

Till the objections are filed and consideration the operation of the decree dated: 25.11.2000 passed by the trial court is stayed.

5. The appellant has not filed any objections to the application nor was any plea taken at the time of hearing that the appeal was time barred. When the appellant has not raised the objection with regard to the limitation and the appeal was admitted in the presence of the appellant and adjudicated on merits, it will be deemed that the delay, if any, has been condoned.

6. The learned Munsiff, Anantnag has decided the suit on the basis of the compromise without following the procedure as laid down under Order 23 Rule 3 CPC which reads as under:

Rule 3. Compromise of suits: – Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by parties], or where the any party of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith] so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit.

[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question, but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] Explanation: – An agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule.]

7. Perusal of the rule shows that compromise should be in writing and must be signed by all the parties. Before passing a decree on the basis of the compromise, the Court is bound to inquire into the question whether the compromise placed on record is a lawful one or not. The court should also be sure that all the parties to the lis are present in the court and they had signed the compromise deed.

8. In the case in hand compromise deed has not been placed on record nor has the statement of all the parties been recorded. Even Smt. Malti Devi, appellant was not present in the court when the compromise decree has been passed.

9. The learned District Judge has rightly set aside the compromise decree and directed the trial court to proceed further in the suit in according to law.

10. For the reasons mentioned above, there is no merit in this appeal which is accordingly dismissed. However, the parties are left to bear their own costs.


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