Vogirala Nageswararao vs Vemavarapu Sitbarama Krishnayya

Chandra Reddy, J.—In this petition, a revision of the order of the District Munsiff, Guntur, dismissing a petition u/s 151 CPC to reject die compromise filed into court by the parties is sought. The facts material for the present enquiry are these:

A suit was filed against the Petitioner on a promissory note executed by him in favour of the Plaintiff''s son on 28th of February 1951 fox Rs. 1000/. The Plaintiff is a transferee for collection. The defence was that the promissory note was not supported by consideration, that it was executed as a security for a monthly payment of Rs. 5/-, which he agreed to make to the minor son of the village Munsiff for his having been allowed to act as the deputy of the minor. During the trial and after the evidence of the Defendant was recorded He suggested that he would deposit tile money in the temple of Sri Tripurasundaramma Varu at Thadepallo and that die original promise should take it in the presence of the deity. Having regard to the question involved in this petition, it is convenient to set out in extenso the terms of the memo of compromise filed into court by the parties:

The Defendant shall get ready the amount to suit and costs within fifteen days from now that is on or ;before 28-8-1954 and deposit the amount with the Defendant''s vakil Sri Tlumnuhuru Nagabhushanam Garu.

A. memo stating that the money has been deposited With him shall be filed into court by the Defendant''s vakil within one wok from the date on which the ''memo is filed The Plaintiff''s son Sitaramabrahhian shall take the amount in the presences of the deity Sri Tripuasundari Ammayam in the temple at Tadepalle The Defendant shall arrange to send the amount to the. temple.

after the Defendant''s vakil: files a memo into court the Plaintiff''s son does not agree to take the arborist in the temple the Plaintiff''s suit shall be dismissed with costs of the Defendant.

if as mentioned above the Defendant''s vakil does not file a memo by 28-3-1954 stating that he has got the money with him the Plaintiff''s suit shall be decreed with costs.

Both parties having agreed to the above terms, they pray that the same may be recorded by this Court.

Then there is the endorsement of the court thus.

Terms read overhand consented to by the parties who signed along with their vakils. Call on 31-8-1954.

Themes days thereafter the application giving rise onto ties C.R.P was filed with the allegations that the applicant was anxious that Plaintiff''s son should not incur divine displeasure by taking the money in the way indicated in the memo of, compromise and that further such compromise was an illegal and invalid one and could not be enforced. This was opposed by the Respondent-Plaintiff, The application was rejected by the District Munsif who opined that if the Plaintiff''s son was prepared to take the amount in the presence of the Deity it was his lookouts and that the Defendant need not exhibit any concern over the matter and that there was no substance in the plea relating to the invalidity.

In the Petition it is urged by Mr. Ramanarasu that compromise in question does not fall. which the purview of Order 23, Rule 3 and therefore the trial court ought to have allowed the prayer me the Petition according to the learned Counsel in order to constitute an adjustment with in the meaning of Order 23 Rule3 CPC the parties should agree upon some terms concerning in the subject matter of the suit which could be embodied in the decree on the strength of which the suit could be given a disposal but in a case where the result of an enquiry as to whether subsequent to the agreement certain acts have been done in pursuance thereof it could not be said to have been adjusted so as to attract the provisions of Order 23 Rule 3 CPC in such a situation it is difficult to say that the decree was passed by consent .

In Support of this proposition reliance was placed on vasudeva shanbog v. Narajon ILR 2 Mad 356 (A) where a bench of the Madras High Court ruled that an agreement between the Parties to a suit to be bound by the oath of the party to a suit it is only where the matter sated in the agreement is sufficient as the grounds of a decision a judgment may be passed for then it would be conclusive evidence under the Oaths Act that Section 98 Code of Civil Procedure, of the Code of 1877 .corresponding, to the present Order 23 Rule 3 would apply. This was, followed by Anr. Bench of the samu court in Moyam v. Pathukutti, ILR 31 Mad 1 (B).

There the Plaintiff had agreed that in case he failed to. Tate the proposed oath the suit should be dismissed. It was laid down by the Bench that the suit should not be dismissed solely by reason of such failure though it could be recorded u/s 12 of the Oaths Act and could weight given td the circumstance ''in appreciation the evidence.

In. support "of his proposition, the counsel for the Petitioner also cited Shah Nawaz v. Ghulam Maluimniad AIR 1946 Lah 78 (C) . It was there laid down that agreement been, the parties that the suit, should be decided in'' favour, of the Defendant or the Plaintiff according as the Defendant did nor did not take the oath on the Holy Qumran'' in the mosque does not amount to adjustment within the meaning of Order 23 Rule 3.

Mr. Venkatappayya counsel for the Respondent on the other hand, placed reliance on a pronouncement of the Madras High Court in Umayammai v. Mutiah Nadar, 17 Mad LJ 99 (D) to the effect that if a party agreed to be bound by bath prevented that oath from being taken the other party: was entitled to decree the being such an agreement was in effect an agreement to treat the evidence given under the oath as evidence in the case and dispense other evidence in the case and dispense other evidence He also referred to a decision of die Full. Bench of Allahabad- High Court in Saheb Riaifi v. Rarri Newaz, AlR 1952 All 882 (E)''which is in consonance with this view.

In my opinion all those cases. Only considered the effect of Sections 8 to 12 of the oaths Act and are therefore not relevant in the context of this enquiry In the instant case there is no provision for bath being taken by either party the terms being that the money should be deposited by the Defendant by a temple and the Plaintiff''s son should take the same in the presence of the party Further ''they are also cases which deal with the question whether such ah agreement would amount to an adjustment ''within the operation Order 23 Rule 3 CPC and the principle underlying those cases cannot govern the present case.

Although Order 23 Rule 3 was quoted in the memo of compromise I do pot think it is really a case covered by the principle embodied in that rule This is s case in which the parties entered into a contra act on the terms mentioned above and it provided In the memo that a decision should be given against the party who committed breach of it I think this case falls within the doctrine'' of Rangaswamy Kundan v. Trisa Maistry 17 Mad LJ 37 (F) There the parties entered into an agreement under which the Plaintiff had to convey the property in dispute to the Defendant for a stated consideration fading which the. suit should be dismissed.

Default as committed by the Plaintiff with the result that the suit was dismissed in pursuance of the terms of the contract Chief Justice Arnold White and Justice Miller upheld the judgment of the trial court, repelling the argument that the suit could not be dismissed in view of Section 375 CPC the predecessor of Order 23 Rule 3 of the present Code as in their opinion that provision law did not stand in the way of parties entering into such agree ment. The view taken by Justice Pandrang Row in Makudam Mahommad v. Mahoinmad Sheikh Abdul Kadir, 71 Mad LJ 281: 1930 Mad 856 (G), is an agreement with the principle enunciated in 17 Mad LJ 37 (F).

In the former case, a suit was instituted for a 4eclaration that the Plaintiff was solely entitled to the house. The defence to the suit was that the 2nd Defendant was jointly entitled along with the Plaintiff to the property. While the trial was proceeding, the parties made an endorsement on the plaint to the effect that if the key produced by the 2nd Defendant would open the door of the house and his things were found in the house, the suit should be dismissed and it should be decreed if it was found otherwise. A commissioner appointed by the court for his purpose found that the key produced by the Defendant could not open the door and all the things found in the house belonged to the Plaintiff.

The question arose whether in (hat event the suit should be decreed. Justice Pandrang Row expressed the opinion that irrespective of whether the endorsement amounted to an adjustment under Order 23 Rule 3 or not, the court could give effect to the compromise entered into between the parties and the Defendant was estopped from contending that the court could not base its judgment in accordance with the terms of the compromise. The learned Judge relied on the observations of Lord Watson in Burgess v. Morton, 1896 AC 136 (H).

The point that fell to be decided by the House of Lords was whether when a Judge departed from the ordinary course of procedure and decided upon a question of fact having been invited by the parties to do so, it was incompetent for the parties to object that the matter ought to have been heard in due course. The remarks contained in the speech of Lord Watson are relevant in this context;

There are several decisions of this house, in cases coming from Scotland, which appear to me to affirm that the judgment of a court below, pronounced extra curium curiae, is in the nature of an arbiter''s award, and that, as a general rule at least, appeal from it will lie.

The principle deducible from these rulings is that when a court is invited to follow a special procedure not provided for in the CPC it is not open to him to contend that the court should not have adopted the very procedure suggested by him. A party cannot be allowed to approbate and reprobate. The rule of estoppel can also be extended to the present case. It is complained by the Plaintiff that on account of this compromise he had dispensed with witnesses and having induced him to adopt that course by his conduct it is not open to the Defendant to try to go upon the compromise It follows that it is not open to the Defendant to resile from the contract, and the consequences of his failure to carry out his part of the contract should ensue. So, the order of the court below is correct and should be affirmed.

In the result the Code of Criminal Procedure is dismissed with costs.