2011 AIR CC 2390 (PAT)

Patna High Court

Hon'ble Judge(s): Mungeshwar Sahoo , J

( A ) Civil Procedure Code (5 of 1908) S. 96 (3), O. 43, R. 1A(2) — First appeal — Maintainability — Appellant challenging recording of compromise itself — Factum of compromise in dispute — S. 96(3) will not operate as bar to appeal against such compromise decree — Moreso, as right has been given under Order 43, Rule 1A(2) to party who challenges recording of compromise, to question validity thereof while preferring appeal against decree. (Paras9)

( B ) Civil Procedure Code (5 of 1908) S. 11 — Res judicata — Order at very initial stage of first appeal that appeal is maintainable — Question of maintainability of appeal — Cannot again be raised at final stage of appeal being barred by principle of res judicata — Principle of res judicata applies in same proceeding in subsequent stages. (Paras9)

( C ) Civil Procedure Code (5 of 1908) S. 96 (3), O. 41, R. 4 — First appeal — Maintainability — Partition suit — Appeal — Death of appellant — One of respondent transposed as appellant — Maintainability of appeal cannot be questioned on ground that appeal at his instance was not maintainable as he had not originally filed appeal — In partition suit, everyone in suit whether he is plaintiff or defendant is in position of plaintiff and in partition suits transposition is frequently done — More so, as in view of O. 41, R. 4, anyone of plaintiff or defendant in filing an Appeal represents all other non-appealing plaintiffs or defendants, who want reversal or modification of decree in favour of them as well. (Paras10)

( D ) Civil Procedure Code (5 of 1908) O. 23 , R. 3 — Compromise application — Prayer portion stating that till further application is filed by parties, said application shall be kept on record and no order should be passed — No second application filed — Parties appearng before Court on specified date and requesting Court not to accept compromise as conditions of compromise were not fulfilled — Prior to recording compromise, Court directed Nazir to give delivery of possession — Such procedure is unknown to law and illegal. AIR 1951 Pat 299, AIR 1980 Ori 108, 2000 (1) PLJR 897 and 1993 (2) PLJR 725, Disting. (Paras19)

( E ) Civil Procedure Code (5 of 1908) S. 96 — New plea — Interlocutory application praying to allow him adduce further evidence — New plea taken in application without there being pleading i.e. without making amendment in plaint — Cannot be allowed. (Paras17)

( F ) Civil Procedure Code (5 of 1908) O. 41 , R. 27 — Application for additional evidence — Partition suit — Compromise — Appeal, against — Application for permitting to adduce additional evidence by producing certified copy of mutation petition on basis of compromise which was thus, acted upon and thus cannot be challenged — Counter-affidavit stating that it was forged petition — Application was thus, to bring on record subsequent event after final decree and it had got no bearing on merit of appeal — Interlocutory application rejected. (Paras18)