P L D 1966 Dacca 105 (PLP)

It is evident that the application for recording the terms of the compromise was filed in the aforesaid Miscellaneous case by virtue of the provisions of Order XXIII, rule 3, of the Code. Petitioner Mansur Molls objected to the acceptance of the aforesaid terms of the compromise petition. The lawyer, who was granted power by Mansur Molla, did not appear during the hearing of the said Miscellaneous case. The learned lawyer, who did appear, was a pleader by the name of one Abul Hashem. The said pleader, namely, Mr. Abul Hashem, has said that both the parties, including the petitioner, had come before him and had asked him to put in the aforesaid terms of settlement. The learned Munsif did not disbelieve Mr. Abul Hashem but did not record the compromise, for, he was not convinced that the compromise petition was genuine. He, therefore, refused to record the terms of compromise and rejected the said application under Order XXIII, rule 3 of the Code. Against the order passed by the learned Munsif, refusing to record the terms of compromise, plaintiff opposite‑party, Shaikh Abdul Motleb, preferred an appeal which was heard and disposed of by a Subordinate Judge‑of Khulna. The learned Subordinate Judge, after a full consideration of the facts and circumstances of the case, felt satisfied that the compromise petition was a genuine one. He, therefore, allowed the appeal and recorded the terms of compromise under Order XXIII, rule

3. Ancillary to the order passed by him, he also dismissed the petitioner's application under Order IX, rule

13. This Rule is directed against the aforesaid order passed by the learned Subordinate Judge by which he recorded the said terms of compromise under Order XXIII, rule 3 and also dismissed the application under Order IX, rule

13. At the hearing of the Rule Mr. M. M. Hoque appeared for the petitioner in support of the Rule and Mr. Moinul Huq appeared for the plaintiff‑opposite‑party to oppose the Rule. Learned Advocate for the petitioner assailed the order passed by the learned Subordinate Judge on two grounds : In the first place, he has argued that Order XXIII, rule 3, has manner of application to the facts of this case. It was, therefore, contended that recording of the terms of compromise under the said order was illegal. Secondly, he has contended that the learned Subordinate Judge misdirected himself when he further dismissed his client's application under Order IX, rule 13, for setting aside the ex parte decree which was passed against him. It was submitted that the said learned Subordinate Judge was not in seisin of the application under Order IX, rule

13. With regard to the first point, we may, at the outset, quote the language of Order XXIII, rule 3, which runs thus :‑

"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 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 so far as it relates to the suit." Order XXIII, rule 3, itself does not specifically state as to whether its provisions are to be confined to trial of suits only. But the provisions of the Rule relate to a suit and authorise the passing of a decree in accordance with the terms of compromise which may be received. To this extent it is correct to say that the provisions quoted above relate to a suit. But, there is no warrant for travelling to the opposite conclusion that the said rule 3 of Order XXIII has no manner of application to a proceeding other than the trial of a suit. The Rule is directed towards the reception or rejection of terms of compromise in a suit. This is clear. Therefore, if the terms of compromise put in by parties relate to a suit or a decree passed in a suit, it is clear that the Rule itself, that is, Order XXIII, rule 3, can be applicable to a proceeding which may have the effect of re‑opening a decree or which may dispose of the suit in a particular manner. Normally a compromise with regard to any adjustment relating to a suit would be filed prior to its final disposal as embodied in a decree. But, subsequent proceedings to a suit may have the effect of re‑opening the suit itself and, therefore, in any proceeding directed towards there‑opening of a suit there is no reason whys the provisions of Order XXIII, rule 3, would not be applicable.', In the present instance, a suit has been disposed of with the passing of art ex parte decree for specific performance. Petitioner's application under Order IX, rule 13, sought to re‑open the decree and the suit. This is the very purpose of the application under Order. IX, rule

13. During the pendency of the said application we do not see any reason why the parties should be prevented from putting in terms of compromise finally disposing pf the dispute in the suit. If the decree, which is attacked under Order IX, rule 13, is, by agreement of parties, maintained, we do not see how it can be held that Order XXIII, rule 3, is not applicable to such a case. In the view that we have taken we are fortified by a. decision of a Division Bend of the Patna High Court in the case of Choudhury Jagdish Missir v. Choudhury Sureshivar Missir (A I R 4921 Pat. 107). In the said case a suit resulted in a decree in execution whereof certain properties were sold. Subsequently an application was made for setting aside the sale under Order XXI, rule 90, of the Code. During the pendency of the application to set aside the sale, terms of compromise were put in by the parties under Order XXIII, rule

3. It was contended that Order XXIII, rule 3, would not apply to such a case. The Court repelled the contention that an application under Order XXI, rule 90, to set aside a sale was one made in execution of a decree and proceeded to observe thus: "Order XXIII, rule 3, gives the Court power to record the terms of settlement where it is proved to its satisfaction that a suit has been adjusted wholly or in part by any lawful agreement or compromise. Now the term "suit" has not been used in the Civil Procedure Code in its narrow sense as being terminated by the decree made by the‑ first Court, but in a broad sense as including not only the stages of a suit to its termination by the decree of the first Court but as including its appellate stage and proceedings in execution of the decree made in the suit. A "suit" is a process for the recovery of a right or claim, and, from this point of view an application for setting aside a sale under Order XXI, rule 90, of the Code is a suit or a proceeding in the suit within the meaning of Order XXIII, rule 3 . . . . . ." In this connection, we would like to refer to the provisions of section 141 of the Code which are as follows: "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction." If section 141 is read together with Order XXIII, rule 3, it becomes clear that the provisions of Order XXIII, rule 3, will be applicable to all proceedings to which the said Order XXIII, rule 3, can be made applicable. This follows from the provisions of section 14I of the Code. There is no question that Order XXIII, rule 3, can be made applicable to terms of compromise put in during the pendency of an application under Order IX, rule

13. The next point which was urged by the learned Advocate for the petitioner was that the learned Subordinate Judge did not have seisin of the entire application under Order IX, rule 13, the subject‑matter of the appeal before him being confined to the question, whether the compromise petition filed before the learned Munsif should be accepted or rejected. It is conceded that the learned Subordinate Judge was fully competent to receive or reject the said application. It is, however, contended that he could not dispose of the main application under Order IX, rule 13, because he seas not in seisin of this application. To us it seems that this line of argument smacks of sheer casuistry. It may be possible to say, in strict accordance with legal form, the learned Subordinate Judge might have accepted the terms of compromise and could have said that the result would be that the application under Order IX, rule 13, would stand dismissed. After passing such order he might have sent the case back to the learned Munsif to pass a proper order' which, of necessity, must be an order of dismissal of the application. We do not think that the office of section 115 of the Code is designed to meet such an unsubstantial point of mere form. The inevitable result of the order passed by the learned Subordinate Judge, as felt by us, would be the dismissal of the application under Order IX, rule

13. It is clear, therefore, that there is no substance in this point. We, accordingly, discharge this Rule without any order as to costs. ABU MD. ABDULLA, J.‑I agree. K. B. A. Rule discharged.