Manipur High Court
Shri Thoudam Ghanashyam Singh vs Shri Thoudam Sunil Singh on 19 April, 2022
Item Nos.3 -4
LAIRENM Digitally signed by
AYUM LAIRENMAYUM IN THE HIGH COURT OF MANIPUR
INDRAJEET SINGH
INDRAJE Date: 2022.04.21
15:44:10 +05'30'
AT IMPHAL
ET SINGH
CRP (C.R.P. Art.227) No. 35 of 2018
AND
CRP (C.R.P. Art.227) No. 36 of 2018
Shri Thoudam Ghanashyam Singh, age about 68 years, S/o late
Th.Chaoba Singh of Wangkhei Hidam Leikai, P.O. & P.S.
Porompat, Imphal East District , Manipur.
...Petitioner/Defendant
-versus-
Shri Thoudam Sunil Singh, age about 30 years, S/o Th. Guni
Singh of Thoubal Wangma Taba, P.O. & P.S. Thoubal, Thoubal
District , Manipur- 795149.
... Respondent/Plaintiff
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
For the petitioner/defendant : Mr. N.Mahendra, Advocate
For respondent/plaintiff : Mr. Th.Ibohal, Sr. Advocate
:
Date of Hearing & Order : 19.04.2022
O R D E R (ORAL)
[1] OS No.18 of 2016 was filed before the learned Civil Judge (Senior
Division), Imphal East, for a declaration that the plaintiff was the owner and title
holder of the suit land by virtue of the registered sale deed dated 02.07.2011. The
plaintiff also sought eviction of the defendant from the suit land apart from mesne
CRP(CRP Art.227) No.35 of 2018 with
CRP(CRP Art.227) No.36 of 2018 Page 1
profits and a decree of permanent injunction. The suit land is the homestead land
measuring 0.023 acre covered by CS Dag No.32/863 under Patta
No.157(O)/575/1545(A)(New) situated at Village No.27-Wangkhei Nongpok,
Porompat Sub-Division, Imphal East District, Manipur.
[2] While so, order dated 29.04.2017 was passed in the suit by the Trial
Court owing to an amicable oral settlement between the parties. However, the said
order was not acted upon in terms of the stipulations therein. Despite the same,
the Trial Court disposed of the suit in the light of the said order dated 29.04.2017
under Order XXIII Rule 3 CPC, vide final order dated 29.03.2018. Aggrieved by
these orders, the defendant in the suit is before this Court. He filed CRP(CRP
Art.227) No.35 of 2018 against the final order dated 29.03.2018 and CRP(CRP
Art.227) No.36 of 2018 against the earlier order dated 29.04.2017 passed in the
suit. By order dated 11.06.2018 passed in CRP No.35 of 2018, this Court granted
interim stay only in respect of the interest payable @ 6% per month.
[3] Heard Mr. N.Mahendra, learned counsel for the petitioner/defendant;
and Mr. Th.Ibohal, learned senior counsel, appearing for the respondent/plaintiff.
[4] Parties shall be referred to hereinafter as arrayed in the suit.
[5] By its earlier order dated 29.04.2017, the Trial Court noted that the
parties had come to an amicable settlement to the effect that the defendant would
pay a sum of `19 lakh to the plaintiff within six months from that day in full and
final settlement of the dispute and the plaintiff agreed that the registered sale deed
dated 02.07.2011 executed in his favour by the defendant may be declared as
cancelled after full payment of the agreed amount of `19 lakh by the defendant.
The Trial Court accordingly ordered that the defendant should pay `19 lakh to the
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plaintiff through Court within six months and thereupon, the registered sale deed
would be declared as cancelled. The Trial Court further ordered that in the event
of failure on the part of the defendant to make payment of the said sum of `19
lakh to the plaintiff within six months, then the defendant should pay interest @ 6%
per month till full payment. The case was fixed on 29.05.2017 for payment.
[6] Admittedly, the defendant paid only`80,000/- by 28.10.2017, when
the span of six months fixed under the aforestated order ended. It appears that the
Trial Court continued to adjourn the matter through October, November and
December, 2017, to enable the settlement to be acted upon. However, as none
appeared before the Trial Court on behalf of the defendant on 19.12.2017, he was
set ex parte. The defendant thereupon filed Judicial Misc. Application No.31 of
2018 to set aside the order setting him ex parte. This application was allowed on
22.01.2018. On that day, the defendant sought leave to pay a sum of `25,000/-
as part-payment of the settled amount. However, the learned counsel for the
plaintiff did not agree thereto, as the time stipulation in terms of the order dated
29.04.2017 had worked itself out. The case was then heard by the Trial Court on
07.03.2018 and pursuant to that hearing, the final order dated 29.03.2018 came to
be passed.
[7] Therein, the Trial Court noted that the defendant had failed to comply
with its order dated 29.04.2017 with regard to paying the sum of `19 lakh within
six months, as agreed upon by the parties. The Trial Court then noted that, in terms
of the said order, if the payment was not made within the time stipulated, the
defendant was to pay interest @ 6% per month till full payment and observed that
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as the order dated 29.04.2017 was a consensus order, nothing remained to be
decided by going into the merits of the case and that it could be disposed of in the
light of Order XXIII Rule 3 CPC. In consequence, the Trial Court ordered and
decreed that the defendant should pay the sum of `18,20,000/- to the plaintiff with
interest @ 6% per month, from 30.04.2017 till full realization of the decretal
amount, along with costs of the suit.
[8] Ordinarily, an appeal has to be filed against a final judgment in a suit
[see Sadhna Lodh vs. National Insurance Co. Ltd. {(2003) 3 SCC 524}].
A petition would not lie under Article 227 of the Constitution against such final
judgment. However, Section 96(3) CPC makes it clear that no appeal shall lie from
a decree passed by a Court with the consent of the parties. Order XXIII Rule 3
CPC deals with the compromise of a suit and the term 'compromise' would imply
consent of the parties. This is the provision which has been pressed into service
by the Trial Court while disposing of the suit in the case on hand. Therefore,
Section 96(3) CPC would operate as a bar and the defendant in the suit would be
precluded from maintaining a regular first appeal against the final order dated
29.03.2018. However, as the defendant has a grievance with regard to the disposal
of the suit under Order XXIII Rule 3 CPC, his only remedy is to approach this Court
under Article 227 of the Constitution. Therefore, CRP (C.R.P.Art.227) No.35 of
2018 is held to be maintainable.
[9] As regards the merits of the matter, it may be noted that there was
no written compromise or agreement of settlement filed before the Trial Court at
any point of time. It appears that there was some sort of oral agreement between
the parties in April, 2017, and the same was brought to the notice of the Trial Court,
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resulting in the order dated 29.04.2017. Even at that stage, nothing was reduced
to writing by the parties to the suit under their respective signatures. The terms of
their agreement were embodied only in the order dated 29.04.2017 passed by the
Trial Court. As per that agreement, the defendant was to pay the agreed amount
of `19 lakh to the plaintiff within six months and thereupon, the registered sale
deed executed in favour of the plaintiff by the defendant was to be declared as
cancelled. It is not clear from the order as to whether it was the parties who had
agreed that if the amount was not paid within the stipulated six months, the
defendant should pay interest thereon @ 6% per month till full payment. As no
written agreement was executed by the parties embodying the terms of their
settlement, this issue is not amenable to resolution now.
[10] In any event, it is an admitted fact that the defendant failed to pay the
agreed amount within the agreed time. He only paid `80,000/- within the stipulated
six months. Faced with this situation, the Trial Court took recourse to the provisions
of Order XXIII Rule 3 CPC and disposed of the suit as if it was compromised.
Though the final order dated 29.03.2018 passed in the suit records that it was
finally heard on 07.03.2018, it appears that the defendant did not even file his
written statement and in consequence, the issues were not even settled for trial.
Further, as already noted supra, there was no written settlement between the
parties and there was no memorandum of compromise presented to the Trial
Court. All that was available before the Trial Court was its own earlier order dated
29.04.2017. In such a situation, the question that arises is whether the Trial Court
could have applied the provisions of Order XXIII Rule 3 CPC and disposed of the
suit as if it was compromised.
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[11] It would be apposite at this stage to extract the provision itself:
'Order XXIII
1. ......
2. .......
3. Compromise of suit.- 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 1[in writing and signed by the parties] or
where the defendant satisfies the plaintiff in respect of the whole or any
part 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 2[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]:......
1: Ins. By Act 104 of 1976, sec.74 (w.ef.1-2-1977)
2: Subs.by Act 104 of 1976, sec.74, for "so far it relates to the "suit"
(w.e.f. 1-2-1977)'
[12] The contours and ambit of Order XXIII Rule 3 CPC fell for
consideration before the Supreme Court in Puspa Devi Bhagat (Dead) through LR.
Sadhana Rai (Smt.) vs. Rajinder Singh and others [(2006) 5 SCC 566]. The Supreme
Court held that Order XXIII Rule 3 consists of two parts - the first part provides that
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
the parties, the Court shall order such agreement or compromise to be recorded
and shall pass a decree in accordance therewith. The second part, per the
Supreme Court, provides that where a defendant satisfies the plaintiff in respect of
the whole or any part of the subject matter of the suit, the Court shall order such
satisfaction to be recorded and shall pass a decree in accordance therewith.
Elaborating further, the Supreme Court observed that the first part refers to
situations where an agreement or compromise is entered into in writing and signed
by the parties and the same is placed before the Court. Once the Court is satisfied
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that the suit has been adjusted either wholly or in part by such lawful agreement
or compromise in writing and signed by the parties, a decree would follow in terms
of what is agreed between the parties. In consequence, the parties would be held
to their promise(s) in future and performance can be enforced by the execution of
the decree. However, the second part, according to the Supreme Court, refers to
cases where the defendant satisfies the plaintiff about the claim either by getting
him to agree that his claim cannot be or need not be performed or by discharging
or performing the required obligation in part or in whole. The Supreme Court held
that where the defendant so 'satisfies' the plaintiff in respect of the subject matter
of the suit, nothing further would remain to be done or enforced and there is no
question of any execution of the decree. The Supreme Court further held that
difference between the two parts is that where the matter falls under the second
part, what is reported is a completed action or settlement out of Court, putting an
end to the dispute, and the resultant decree recording the satisfaction is not
capable of being enforced by levying execution. However, where the matter falls
under the first part, there is a promise or promises agreed to be performed or
executed and that can be enforced by levying execution. It was further held that
while agreement or compromise falling under the first part can only be by an
instrument or other form of writing signed by the parties, there is no such
requirement in regard to settlement or satisfaction falling under the second part
and where the matter falls under the second part, it would be sufficient if the plaintiff
or his counsel appears before the Court and informs the Court that the subject
matter of the suit has already been settled or satisfied.
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[13] Given this comprehensive edict on the substance and import of the
provision, the facts of the present case may now be examined. Admittedly, there
was no agreement or compromise executed in writing and signed by the parties at
any time. Therefore, the first part of the provision has no application. For the
second part of the provision to be attracted, the parties necessarily had to act upon
and comply with the promises made on the strength of their oral agreement, which
was embodied in the order dated 29th April, 2017. Had the defendant paid the full
amount in terms of that promise within time, then it would have been sufficient for
the plaintiff's counsel to report that fact to the Trial Court and, thereupon, the Trial
Court could have passed a compromise decree under the second part of the
provision. However, that stage did not come to pass as the defendant did not pay
the amount in full as agreed. In effect, the second part of Order XXIII Rule 3 CPC
had no application. Viewed thus, the Trial Court could not have forced a
compromise upon the defendant when neither the first part nor the second part of
Order XXIII Rule 3 CPC had application to the case. Reliance placed on the said
provision by the Trial Court to dispose of the suit was therefore untenable.
On the above analysis, the final order dated 29.03.2018 passed by
the Trial Court disposing of O.S.No.18 of 2016 as having been compromised is
unsustainable in law and is accordingly set aside.
CRP (CRP Art.227) No.35 is allowed.
[14] As regards CRP(CRP Art.227) No.36 of 2018, as the earlier order
dated 29.04.2017 passed by the Trial Court was not acted upon within the time
frame stipulated therein, it worked itself out. As already noted supra, there was no
written agreement or settlement executed by and between the parties, forming the
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basis of the said order, and only the oral consensus between them was recorded
by the Trial Court in the said order. Therefore, the parties cannot be held to any
promise, even if it was recorded by the Trial Court, as the first part of Order XXIII
Rule 3 CPC would not come into play. The said order would therefore have no
effect or influence over further proceedings in the suit. Making this position clear,
CRP(CRP Art.227) No.36 of 2018 is disposed of.
To sum up, CRP(CRP Art.227) No.35 is allowed and CRP(CRP
Art.227) No.36 of 2018 is disposed of.
The suit, OS No.18 of 2016, shall stand restored to the file of the
learned Civil Judge (Senior Division), Imphal East, and shall be disposed of in
accordance with law and due procedure expeditiously.
In the circumstances, there shall be no order as to costs.
CHIEF JUSTICE
FR/NFR
Opendro
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