Holding

No appeal is maintainable against a consent decree under Section 96(3) CPC, and the consent decree is a valid compromise falling within the first part of Order 23 Rule 3, rendering it binding.

Summary

The landlords filed a suit for possession of a Delhi flat against the tenant. After years of adjournments, the tenant’s counsel recorded on oath a statement that the tenant would vacate the premises by 22‑Jan‑2002 and pay rent until then; the landlord’s counsel accepted the terms. The trial court entered a consent decree based on those recorded statements. The tenant later applied to set aside the decree, claiming she had not authorized the compromise, but withdrew the application and appealed the decree. The appellate court set aside the decree, holding that no written, signed agreement existed. The High Court affirmed, treating the compromise as falling under the second part of Order 23 Rule 3, which does not require a written, signed document. The Supreme Court examined whether an appeal under Section 96 CPC is maintainable against a consent decree and whether the compromise satisfied the first‑part requirements of Order 23 Rule 3. It held that Section 96(3) bars any appeal against a consent decree and that the recorded statements, signed by counsel and made under a valid vakalatnama, constitute a written compromise in the sense of the statute, thus falling within the first part of Rule 3. Consequently, the consent decree stands and the appeal is dismissed.

Issues considered

Whether an appeal filed under Section 96 of the Code of Civil Procedure, 1908 against a consent decree is maintainable.
Whether the compromise resulting in the consent decree is a valid compromise under Order 23 Rule 3 of the CPC (first part requiring a written, signed agreement).

Legislation cited

Code of Civil Procedure, 1908s. 96(3), s. Order 23 Rule 3, s. Order 43 Rule 1(m) (deleted), s. Rule 3A
Indian Evidence Act, 1872s. 3

Subjects

consent decreeSection 96 CPCappeal maintainabilityOrder 23 Rule 3landlord‑tenant disputewritten compromiseexecution of decreejurisdictioncivil procedure

Judgment

A PUSHPA DEVI BHAGAT (D) TH. LR. SMT. SADHNA RAI
v.
RAJINDER SINGH AND ORS.

JULY 11, 2006

B [B.P. SINGH AND R.V. RA VEENDRAN, JJ.]

Code of Civil Procedure, 1908-Section 96-0rder XX!ll, Rule 3-
landlord-tenant dispute-Compromise resulting in consent decree-Appeal
C against--Maintainability of-Held: No appeal is maintainable against a consent
decree in view of the bar created by s.96-0nly remedy available to a party
to a consent decree is to approach the Court which recorded the compromise
and made a decree in terms of it and establish that there was no compromise.

Code of Civil Procedure, 1908-0rder XX/JI, Rule 3-Compromise of
D suits-Difference between first and second parts of Rule 3-Explained-Suit
by landlord for recovery of possession-Tenant-defendant agreed to vacate
suit premises-Court recorded statements of counsels on both sides and passed
consent decree-Held: The decree fell under the first part ofRule 3-landlord
could recover possession in execution of such decree in the event of tenant-
defendant failing to vacate the premises within the time agreed-Attempts of ·
E the tenant to protract litigation by raising frivolous and vexatious contentions
regarding the compromise and going back on the solemn undertaking given
to Court, deprecated.

Constitution of India-Art. I 36-Pleadings-New plea-Held: Supreme
F Court does not normally permit a new plea to be raised-But it can entertain
any new plea which does not involve airy question of fact or amendment of
pleading and is purely one of law, particularly relating to jurisdictio11 of the
appellate court.

Landlords filed suit for recovery of possession of property. When
G the matter finally came up for hearing, the tenants-defendants made
statement undertaking to vacate the suit premises. Statements of counsels
for both the parties were recorded on oath and signed whereupon the
Court passed a consent decree. Subsequently, one tenant i.e. the second
defendant filed an applieation before the Trial Court for setting aside the

H 370
PUSHPADEVI BHAGAT(D)TH. LR. SMT SADHNARAI "· RAJINDERSINGH 37 J

consent decree alleging that she had not instructed her counsel to enter A
into any compromise on her behalf. However, the second defendant did
not pursue the application and filed an appeal against the consent decree.
The Appellate Court set aside the decree on the ground that there was no
agreement or compromise reduced to writing and signed by the parties.

High Court however held that the consent decree in question did not B
fall under the first part of Rule 3 of Order 23 (requiring an agreement or
compromise between the parties to be in writing signed by the parties)
but fell under the second part of Rule 3 of Order 23 (relating to
satisfication of the claim of the plaintiff, which did not require any
document in writing signed by the parties), and that there was a valid C
compromise under Order 23, Rule 3 CPC and the second defendant "could
not repudiate the consensus by attempting to challenge their satisfication".
From the fact that the second defendant did not pursue the application
before the Trial Court, and from the fact that she did not challenge the
integrity of her counsel (who entered into the compromise) either before
the Appellate Court or before it, the High Court drew an inference that D
second defendant's counsel had the authority on her behalf to make the
statement leading to the consent decree. Hence the present appeal by the
second defendant's legal representative.

The. question which arose for consideration in the present appeal is E
whether an appeal filed under Section 96, CPC against the consent decree
was maintainable and whether the compromise rec:orded by the Court
resulting in a consent decree was a valid compromise under Order 23, Rule
3, CPC.

Dismissing the appeal, the Court F
HELD: I. The landlords did not contend either before the first
appellate court or before the High Court that the appeal against the
consent decree was not maintainable. This contention is urged for the first
time in this Court. Such a plea does not require any evidence. Further,
being a contention relating to the jurisdiction of the appellate court, it does G
not require any 'pleading'. Though this Court will not normally permit a
new plea to be raised at the hearing of the special leave petition or an
appeal under Article 136, where such plea does not involve any question
of fact or amendment of pleading and is purely one of law, particularly
relating to jurisdiction of the appellate court, it can be entertained by this H

=
372 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A Court.

Shanti Devi v. Bimla Devi, AIR (1988) SC 2141; Zahoor v. State of
U.P., AIR (1991) SC 41 and Hiralal v. Kasturi Devi, AIR (1967) SC 1853,
relied on. [382-G, H; 383-A[

B 2. t. The position that emerges from the amended provisions of Order
23, can be summed up thus : (i) No appeal is maintainable against a consent
decree having regard to the specific bar contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the
compromise (or refusing to record a compromise) in view of deletion of
C clause (m) of Rule I Order 43. (iii) No independent suit can be filed for
setting aside a compromise decree on the ground that the compromise was
not lawful in view of the bar contained in Rule 3A. (iv) A consent decree
operates as an estoppel and is valid and binding unless it is set aside by
the court which passed the consent decree, by an order on an application
under the proviso to Rule 3 of Order 23. [383-G-H; 384-A-C[
D
2.2. Therefore, the only remedy available to a party to a consent
decree to avoid such consent decree, is to approach the court which
recorded the compromise and made a decree in terms of it, and establish
that there was no compromise. In that event, the court which recorded
E the compromise will itself consider and decide the question as to whether
there was a valid compromise or not. This is so because a consent decree,
is nothing but contract between parties superimposed with the seal of
approval of the court. The validity of a consent decree depends wholly on
.the validity of the agreement or compromise on which it is made.
[384-C, El
F
2.3. The second defendant, who challenged the consent compromise
decree was fully aware of this position as she filed an application for setting
aside the consent decree by alleging that there was no valid compromise
in accordance with law. Significantly, none of the other defendants
challenged the consent decree. For reasons best known to herself, the
G second defendant within a few days thereafter, filed an appeal and chose
not to pursue the application filed before the court which passed the
consent decree. Such an appeal by second defendant was not maintainable,
having regard to the express bar contained in Section 96 (3), CPC.
[384-E-F[
H
3.1. Rule 3 of Order XXlll which relates to compromise of suits
l'\)SllPADEVI BHAGAT(D)TH. LR. SMT. SADHNARAI "· RAJINDER SINGH 373

consists of two parts. The first part refers to situations where an agreement A
or compromise is entered into in writing and signed by the parties. The
said agreement or compromise is placed before the court. When the court
is satisfied that the suit has been adjusted either wholly or in part by such
agreement or compromise in writing and signed by the parties and that it
is lawful, a decree follows in terms of what is agreed between the parties.
The agreement/compromise spells out the agreed terms by which the claim B
is admitted or adjusted by mutual concessions or promises, so that the
parties thereto can be held to their promise/s in future and performance
can be enforced by the execution of the decree to be passed in terms of it.
On the other hand, the second part refers to cases where the defendant
has satisfied the plaintiff about the claim. This may be by satisfying the C
plaintiff that his claim cannot be or need not be met or performed. It can
also be by discharging or performing the required obligation. Where the
defendant so 'satisfies' the plaintiff in respect of the subject-matter of the
suit, nothing further remains to be done or enforced and there is no
question of.any 'enforcement' or 'execution' of the decree to be passed in
terms of it. [385-B, E-H; 386-AI D
3.2. 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. Where the matter falls under the E
first part, there is a promise or promises agreed to be performed or
executed, and that can be enforced by levying execution.. While agreements
or compromises 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
ill regard to settlements or satisfication falling under the· second part.
Where the matter falls under second part, it is sufficient if the plaintiff or F
plaintifrs counsel appears before the court and informs the court that the
subject m11tter of the suit has already been settled or satisfied. (386-E-G)

4.1. In a suit against the tenant for possession, if the settlement is
that the tenant will vacate the premises within a specified time, it means
that the possession could be recovered in execution of such decree in the G
event of the defendant failing to vacate the premises within the time
agreed. Therefore, such settlement would fall under the first part. On the
other hand, if both parties or the plaintiff submit to the court that the
tenant has already vacated the premises and thus the claim for possession
has been satisfied or if the plaintiff submits that he will not press the prayer H
374 SUPREME COURT REPORTS (2006) SUPP. 3 S.C.R.

A for delivery of possession, the suit will be disposed of recording the same,
under the second part. In such an event, there will be disposal of the suit,
but no 'executable decree. [387-A, Bf

4.2. In this case, under the settlement, the tenant undertook to vacate
the suitt property on a future date and pay the agreed rent till then. The
B decree in pursuance of such settlement was an 'executable' decree.
Therefore the settlement did not fall under the second part, but under tile
first part of Rule 3. The respective statements off plaintiffs counsel and
defendants' counsel were recorded on oath by the Trial court in regard
to the terms of the compromise and those statements after being read over
C and accepted to be correct, were signed by the said counsel. If the terms
of a compromise written on a paper in the form of an application or
petition is considered as a compromise in writing, it cannot be said that
the specific and categorical statement on oath recorded in writing by the
court and duly read over and accepted to be correct by the person making
the statement and signed by him is not in writing. Also Section 3 of the
D Evidence Act defines a document as any matter expressed or described
upon any substance by rneans of letters, figures or makes or by more than
one of those means intl!nded to be used or which may be used for the
purpose of recording the matter. The statements recorded by the court
will, therefore, amount to a compromise in writing. Consequently, the
E statements of the parties or their counsel, recorded by court and duly
signed by the persons making the statements, would be 'statement in
writing signed by the parties'. 1387-C; 389-F-H; 390-Af

4.3. The Court, however, has to satisfy itself that the terms of the
compromise are lawful. In this case it is found from the trial court records
F that the second defedant had executed a vakalatnama empowering her
counsel to act for her in respect of the suit and also to enter into any
compromise. Hence there can be no doubt that the counsel was authorized
by the second defendant to enter into a compromise. It is also found that
the cou:isel for the plaintiffs and counsel for the defendants made solemn
statements on oath before the trial court specifying the terms of
G compromise, which were duly recorded in writing and signed by them.
The requirements of the first part of Rule 3 of Order XXlll are fully
satisfied in this case. The Court not only recorded the terms of settlement
but thereafter directed that the statements of the counsel be recorded.
-
Thereafter, the statements of counsel were re.:orded on oath, read over
H and accepted by the counsel to be correct and then signed by both counsel.
PUSilPA DEVIBHAGAT ID) TH. LR. SMT. SADHNA RAJ ''· RAJINDER SINGH J 75

Therefore in this case, there is a valid compromise in writing and signed A
by the parties (represented counsel). (390-A-D; 392-D-EI

Gurpeet Singh v. Chatur Bhuj Goel, (198811 SCC 270, distinguished.

Byram Pestonji Gariwala v. Union Bank of India, (199211SCC31 a11d
Juneshwardas v. Jagrani, (20031 11 sec 372, relied on. B
5.1. In this case, the suit was a simple suit for possession by a landlord
against a tenant filed in the year 1993, Plaintifrs evidence was closed in
. 1998. The matter was dragged on for 3 years for defendant's evidence after
the conclusion of plantifrs evidence. When the matter finally came up on
23.5.2001, no evidence was tendered. On the other hand, a statement was c
made agreeing to vacate the premises by 22.1.2002. T[1e trial court took
care to ensure that the statements of both counsel were recorded on oath
and signed. Thereafter, it passed a consent decree. The attempts of tenants
in such matters to protract the litigation indefinitely by :·aising frivolous
and vexatious contentions regarding the compromise and going back on
D
the solemn undertaking given to court, should be deprecated. (392-E-GI

5.2. Neither the second defendant nor her legal representative has
attributed any improper motive to second defendant's counsel. The facts
go to show nothing further could have been done for the defendants-
ten2nts. All that the counsel for defendants had done was to get the E
maximum advantage to his clients in the circumstances after dragging on
the matter to the extent possible. (393-DI

Smt. Jami/abai Abdul Kadar v. Shankar/a/ Gu/abchand, AIR (1975) SC
2202, relied on
F
6. The consent decree is upheld, though for reasons different from
those which weighed with the High Court. The landlords (respondent) will
be entitled to seek mesne profits for the period from 22.1.2002 to date of
delivery of possession in accordance with law. (393-E-FI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2896 of2006. G
From the Judgment and Order dated 3.3.2004 of the High Court of
Delhi in FAQ No. 247/2003.

.. U.U. Lalit, Maulik Nanavati, Shakeel Ahmed, Nithasha Nanavati and
H
376 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A B. Vijayalakshmi Menon for the Appellant.
Sanjay Karol and Harshad V. Hameed (for K.J. John & Co.) for the
Resondents.

The Judgment of the Court was delivered by
B
R.V. RAVEENDRAN, J. Leave granted.

This appeal is directed against the judgment dated 3.3.2004 passed by
learned Single Judge of Delhi High Court in FA No.247 of 2003.
--
C 2. Respondents I & 2 are the landlords of the suit property (front
portion of residential premises no. C-25, Friends Colony, New Delhi).
Respondents I & 2 and their father Late Brig. S. Rameshwar let out the suit
property with the fittings and fixtures to M/s Usha Fisheries Agriculture and
Dairy Farm, a partnership firm (third respondent herein) for a period of three
years under a registered lease deed dated 6.6.1979, the purpose being the
D residential use ofa partner of the firm. Pushpa Devi (mother of the appellant)
and respondents 4, 5 & 6 were its partners. The suit property was being used
by Pushpa Devi for her residential use. The tenancy was continued after the
lease term of three years.

E 3. The landlords (Respondents 1 & 2 and their father) terminated the
said tenancy as at the end of 31.3.1989 by notice C:ated 9.2.1989 and filed a
suit against the firm and Push pa Devi in the court of the District Judge, Delhi
on I 0.4.1989 for recovery of the possession of the suit property. It was
originally numbered as RC Suit No. 265 of 1989 and later, transferred to the
court of the Sub-.Judge, New Delhi (later, Civil Judge, Delhi) and renumbered
F as Suit No. 52 of 1993. Push pa Devi, second defendant, resisted the suit inter
alia on the ground that the first defendant firm had been dissolved and as a
consequence all its partners including herself became the co-tenants and the
suit was not maintainable without impleading the other partners. Subsequently,
M.(.,. Wadhwa, S. K. Mittal and Badan Singh (the other three partners of the
G firm), were imp leaded as defendants 3 to 5. During the pendency of the suit,
the first plaintiff S. Rameshwar died, and the suit was continued by showing
his two sons (original plaintiffs 2 & 3) as plaintiffs I & 2. The fifth defendant
also died and his son Chaman Lal Gahlot was brought on record in his place
as the fifth defendant.

H 4. Two witnesses were examined on behalf of the plaintiffs and their
PUSIWA DEVI BHAGAT (D) TH. LR. SMT. SADHNA RA! "· RAJINDER SINGH [RV. RA VEENDRAN,J.] 377

evidence was closed on 16.9.1998. Thereafter, the case was adjourned a A
number of times for defendants' evidence. Shri Dinesh Garg, counsel for
defendants stated that as the first defendant firm was dissolved, he will not
appear for the firm. In view of it, after issuing court notice, the first defendant
was placed ex parte on 24.4.2000. The order-sheet dated 7.7.2000 shows that
as _defendants 2 & 3 did not let in any evidence, their evidence was closed . B
and the matter was listed for evidence of defendants 4 & 5. On 19.5.2001,
the court made the following order :-

"The case was filed in the year 1989. Keeping in view the fact that
it has already been delayed, defendant no. 4 and newly added
defendant no.5 are given only one (more) opportunity to lead their C
evidence otherwise the same will be closed on the next date of hearing
i.e. 23.5.1991."

On 23.5.1991, the two plaintiffs and their counsel and Shri Dinesh Gar:;,
counsel for the Defendants were present. On the basis of the submissions
made, the court recorded the following submissions in the order sheet : D
"It is stated that the matter has been compromised between the parties.
The defendants undertakes to vacate the suit premises by 22.1.2002
and will keep on paying the rent/damages of the suit premises @
Rs.4800/- with effect from 1.5.2001, till the time of vacation of the
.-
suit premises. Let the statement of both the parties be recorded" E
(emphasis supplied)

Thereafter, the following statement of Shri Dinesh Garg, counsel for defendants
was recorded by the court :

"Statement of Shri Dinesh Garg, Adv. for the defendants.
F
W.O.

I have instructions on behalf of the defendants to make the present
statement that the defendants undertake to vacate the suit premises by
22.1.2002 and will keep on paying the rent/damages @ Rs.4800/- G
w.e.f. 1.5.2001, till the vacation of the suit premises. The rent upto
30.4.200 I already stands paid.

Sd/- Dinesh Garg, Adv. R.0.A.C.
(Sd. Civil Judge)
·•
H
378 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A Thereafter, the following statement of Shri B. Khan, counsel for the plaintiffs
was recorded :

"Statement of Shri B. Khan, Counsel for both the plaintiffs.
W.O.

B I have instructions on behalf of plaintiffs to make the present statement
that in view of the statement made by the counsel for the defendants,
on behalf of the defendants, the suit may kindly be disposed of
accordingly. I accept the terms of the statement of counsel for
defendants. The plaintiffs are also present today in the court and will
countersign this statement.
c
Sd/- B. Khan, Adv. R.0.A.C.
(Sd/- Civil Judge)

In addition to the learned counsel for plaintiffs and defendants signing the
order sheet, plaintiffs I & 2 who were present in court, also signed the order
D sheet. Thereafter, the court made the following order :-

"ORDER

In view of the statement made by the counsel for parties in the presence
of both the plaintiffs, the suit stands disposed off as settled. Parties
E to be bound by their statements made today.

File be consigned to R/R. Decree sheet in terms of said compromise
be prepared.

23.5.2001 Sd/Savita Rao
F Civil Judge, Delhi"

5. It was subsequently found that Shri Dinesh Garg though appearing
for all defendants, had not filed Vakalatnama for defendants 3 & 4 and one
Shayam Kishore had entered appearance for them. Therefore, an application
under sections 151 and 152 CPC was moved. Shri Dinesh Garg filed the
G Vakalatnama on behalf of the defendants 3 & 4 on 18.7.2001. In view of it,
th¢ trial court made the following order on 18. 7.200 J :

"Reply to application under section 151 and 152 filed. Copies given.

As stated Vakalatnama on behalf of the defendants I, 2, & 5 is
H already on record but inadvertently, the Vakalatnama on behalf of the
PUSHPA DE\1 BHAGAT (D)TH. LR. SMT. SADHNA RAI "· RAJINDER SINGH [ R.V. RA VEENDRAN, J.] J 79

defendants 3 & 4 was not filed which the counsel Shri Dinesh Garg A
is filing today. It be taken on record. Counsel for defendant states
that when he gave the statement, he was duly authorized on behalf of
the defendants for making statement. He further states that defendant
no. 1 is a partnership firm which has now been dissolved and is not
in existence and even if the decree is passed against defendant no. I
then also it will be executable against defendents 2 to 5 only. However, B
I pass a decree against all the defendants. Let the decree be modified
and a fresh decree sheet be prepared mentioning therein that the
defendants will vacate the suit premises by 22.1.2002 and will keep
on paying the rent/damages @ Rs.4800/- with effect from 1.5.2001
till the vacation of the suit premises, i.e., front portion forming part C
of premises No.C-25, Friends Colony, New Delhi as shown red in the
site plan annexed with the plaint. File be sent to RR.

Sd/Civil Judge"

Accordingly, a fresh decree was drawn on 18.7.2001 in terms of the final D
order dated 23.5.2001. _..... .-.

6. On 21.8.2001, second defendant (Pushp~ Devi) filed an application
under section 151 CPC for setting aside th.e decree dated 18.7.2001 alleging
that she had not instructed her counsel Shri Din~s_h Gar.g_to enter into any
compromise on her behalf that there was n.Q_:'written compromise between E
the parties duly signed by the parties", and therefore, there was no lawful
agreement or compromi~e. The court issued notice of the said application to
Shri Dinesh Garg, counsel for the defendants as also the plaintiffs. Shri
Dinesh Garg filed a detailed statement dated 7.12.2001. We extract below the
relevant portions of the said statement :
F
"The counsel had represented the defendant no. 2 for about 12 years
in the aforesaid matter. The counsel was getting the instructions from
the defendant no .. 2 most of times through her daughter Ms. Sadhna
Rai or her son in law, Shri Vinay Rai or through Group Head of Law
Department Dr. M.C. Gupta. All the proceedings were always G
communicated to the defendant no.2.

After the closing of evidence by the plaintiff, the case was listed for
the defendant's evidence time and again and under instructions of the
defendant no. 2, the counsel took adjournments for evidence for several
.. years. The adjournment were taken on 4.12.1998, 5.4.1999 and H
380 SUF'REME COURT REPORTS [20061 SUPP. 3 S.C.R.

A 21.5.1999. When the case fixed for 12.7.1999 for evidence of
defendant no. 2, she again did not come and sent her medical certificate
which was placed on record and case was adjourned to 8.9.1999.
Again adjournment was sought and the case was adjourned to
22.10.1999 as last and final opportunity for her evidence. A written
communication dated 20.9.1999 was sent by register~d post to
B defendant no. 2, but she did not appear. Again adjournment was
sought as per her instructions and this time the case was adjourned
for 30.11.1999 for her evidence subject to cost of Rs.500/- which was
paid by her but still she did not appear in witness box. Even thereafter
case was adjourned on 13.1.2000, 24.4.2000, 7.7.2000, 4.9.2000,
c 16.10.2000, 20.12.2000 and 26.4.200 I for evidence of remaining
defendants but none appeared in witness box.

After contesting the matter for about I0 years when it was not possible
to take any further date for recording of the evidence of the defendants,
the counsel advised the defendant no. 2 to lead evidence and made
D it clear that it will not be possible for the counsel to meet any further
adjournment.

However, she requested for getting her some time to enable her to
find an alternative accommodation. The counsel took her oral
instructions under good faith and because of level of confidence
E developed after representing Usha Group for about 18 years, started
negotiations with the plaintiff which went on for several months,
during which period there were several offers and counter offers duly
communicated to the defendants. Ultimately when plaintiff came out
with plea to first clear the arrears of rent with effect from 0 I. I0.1999,
the counsel asked defendant no. 2 to clear the arrears which were sent
F to counsel vide communication of their Law Officer dated 9.4.200 I
through the Head of Law Department Dr. M.C. Gupta.

Afrer that, the term are negotiated and ultimately, with prior approval
of defendant no. 2 a statement was made on behalf of the defendant
no. 2 as well on behalf of the other defendants and the decree was
G
obtained based on admission. Pursuant to request of the counsel, the
plaintiff as well as this Hon'ble Court was pleased to allow time upto
22.1.2002 to the defendants to vacate the premises. Immediately after
recording of the statement, a written communication dated 24.5.2001
was sent to the defendant no. 2 as well as to Dr. M.C. Gupta, Head
H of the Law Department of Usha Group of Companies was sent by
PUSHPA DEVI BHAGAT(D)TH. LR. SMT. SADHNA RAI ''· RAIINDER SINGH [RY RA VEENDRAN,J.] 38 J
....,
( -

Registered A.D. post clearly indicating therein that a statement has A
been made as per the instructions and that the decree has been passed.
This communication was duly received by the defendant no. 2 as well
as Dr. M.C. Gupta. The copy of the letter, postal receipts and the AD
',_
card duly signed by the defendant as received are annexed."

7, The second defendant did not, however, pursue her application dated B
21.8.2001 for setting aside the consent decree. On 27.8.2001, within six days
of filing the application dated 21.8.200 I before the trial court for setting
aside the decree, the second defendant filed an appeal against the said consent
'·
decree before the District Judge, Delhi. The appellate court by judgment
dated 2Ll2.2002 set aside the consent decree on the ground that there was
no agreement or compromise reduced to writing and signed by the parties.
c
The matter was remanded to the trial court with a direction to proceed with
-.
I

the trial of the suit in accordance with the law by ignoring the statement of
the counsel made on 23.5.2001.

8. The said judgment of the Appellate Court was challenged by the D
landlords in FAO No. 247 of2003 on the file of the Delhi High Court, under
Order 43 Rule (l)(u) ofCPC. During the pendency of the said appeal before
the High Court, Pushpa Devi died, and her daughter (the Appellant) came on
record and pursued the appeal. The High Court allowed the landlords' appeal
by judgment dated 3.3.2004. The High Court held that the consent decree in
question did not fall under the first part of Rule 3 of Order 23 (requiring an E
agreement or compromise between the parties to be in writing and signed by
the parties), but fell under the second part of Rule 3 of Order 23 (relating to
satisfaction of the claim of the plaintiff, which did not require any document
in writing signed by the parties), and that there was a valid compromise
under Order 23 Rule 3 CPC and the second defendant "could not repudiate F
the consensus by attempting to challenge their satisfaction", From the fact
that the second defendant did not pursue the application dated 21.8.2001
filed before the trial court, and from the fact that she did not challenge the
integrity of her counsel (who entered into the compromise) either before the
appellate court or before it, the High Court drew an inference that second
defendant's counsel Sri Dinesh Garg, had the authority on her behalf to make G
the statement leading to the consent decree.
"'
9. The judgment of the High Court is challenged by the appellant
(second defendant's legal representative) in this appeal. Learned counsel for
,__ the appellant contended that the High Court having held that the case did not
H
382 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A fall under the first part of Rule 3 of Order 23, committed a serious error in
holding that the case fell under the second part of the said Rule. It is contended
that the second part applies only where the defendant satisfies the plaintiff in
regard to the whole or part of the subject matter of the suit. It is pointed out
that the second part refers to completed acts, that is acts which have been
B already executed or performed, where nothing more remains to be done in
future by a defendant. He submitted that in this case when the counsel for the
defendants agreed to vacate the suit premises on a future date, that is on or
before 22.1.2002, it was a promise or an agreement to do an act in future to
satisfy the suit claim, and not a case where "defendant satisfies the plaintiff
in respect of the subject matter of the suit". He pointed out that ifthe defendants
C had vacated and delivered the premises to the plaintiffs and thereafter the
counsel for the defendants had confirmed the same and the suit had been
disposed of recording the said submission, then it would fall under the second
part. The appellant contends that the High Court having held that the case did
not fall under the first part of Rule 3, and the case demonstrably not falling
under the second part of Rule 3, it has to be hela that there was no lawful
D agreement or compromise. It is submitted that the first appellate court was
justified in setting aside the consent decree and remanding the matter to the
trial court. On the other hand, the learned counsel for the landlords contended
that the District Court had no jurisdiction to entertain the appeal against a
consent decree. It is also contended that there was a compromise by admitting
E the claim of the plaintiffs, and, therefore, the consequential decree is valid
and binding. On the contentions raised, the following two questions arise for
consideration :

( i) Whether the appeal filed by Push pa Devi under section 96 of the
Code of Civil Procedure, against the consent decree was
F maintainable.
(ii) Whether the compromise on 23.5.2001 resulting in a consent
decree dated 18. 7.200 l was not a valid compromise under Order
23 Rule 3 CPC.

G Re: Point No. (i)
l 0. It is no doubt true that the landlords did not contend either before
the first appellate court or before the High Court that the appeal against the
consent decree was not maintainable. This contention is urged for the first
time in this Court. The contention relates to jurisdiction of the appellate court
H and is evident from the record. Such a plea does not require any evidence.
PUSHPA DEV! BHAGAT(D)TH. LR SMT. SADHNARAI •·. RAJINDERSINGH [ R.V RAVEENDRAN.l] 383

Further, being a contention relating to the jurisdicti'Q_n of the appellate court, A
it does not require any 'pleading'. Though this Court Will not normally permit
a new plea to be raised at the hearing of the special leave petition or an
appeal under Article 136, where such plea does not involve any question of
fact or amendment of pleading and is purely one of law, particularly relating
to jurisdiction of the appellate court, it can be entertained by this Court. (See B
Shanti Devi v. Bimla Devi, AIR (1988) SC 2141 and Zahoor v. State of U.P.,
AIR (1991) SC 41; In Hirata! v. Kasturi Devi, AIR (1967) SC 1853, this
Court observed :

" .... though the question of jurisdiction had not been urged before the
High Court, it stares one in the face of the judgment of the appellate C
court. We are satisfied that the appellate court had no
jurisdiction..... though this point was not raised in the High Court, it
is so obvious that we have permitted the plea to be raised before us."

In this case, the contention raised being one relating to jurisdiction of the
appellate court, we have permitted the said contention and heard both sides D
·thereon.

11. Section 96 provides for appeals from original decrees. Sub-section
(3) of section 96, however, provided that no appeal shall lie from a decree
passed by the court with the consent of the parties. We may notice here that
Order 43 Rule l(m) of CPC had earlier provided for an appeal against the E
order under Rule 3 Order 23 recording or refusing to record an agreement,
compromise or satisfaction. But clause (m) of Rule I Order 43 was omitted
by Act I04 of 1976 with effect from 1.2.1977. Simultaneously, a proviso was
added to Rule 3 Order 23 with effect from 1.2.1977. We extract below the
relevant portion of the said proviso : F
"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 ...."
•
Rule 3A was also added in Order 23 with effect from 1.2.1977 barring any G
suit to set aside a decree on the ground that the compromise on which the
decree is based was not lawful.

12. The position that emerges from the amended provisions of Order
23, can be summed up thus :
H
384 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A (i) No appeal is maintainable against a consent decree having regard
to the specific bar contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording
the compromise (or refusing to record a compromise) in view of
the deletion of clause (m) Rule I Order 43.
B (iii) No independent suit can be filed for setting aside a compromise
decree on the ground that the compromise was not lawful in
view of the bar contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is valid and binding
unless it is set aside by the court which passed the consent decree,
c by an order on an application under the proviso to Rule 3 of
Order 23.

Therefore, the only remedy available to a party to a consent decree to avoid
such consent decree, is to approach the court which recorded the compromise
D l\nd made a decree in terms of it, and establish that there was no compromise.
In that event, the court which recorded the compromise will itself consider
and decide the question as to whether there was a valid compromise or not.
This is so because a consent decree, is nothing but contract between parties
superimposed with the seal of approval of the court. The validity ofa consent
decree depends wholly on the validity of the agreement or compromise on
E which it is made. The second defendant, who challenged the consent
compromise decree was fully aware of this position as she filed an application
for setting aside the consent decree on 21.8.200 I by alleging that there was
no valid compromise in accordance with iaw. Significantly, none of the other
defendants challenged the consent decree. For reasons best known to herself,
F the second defendant within a few days thereafter (that is on 27.8.2001), filed
an appeal and chose not to pursue the application filed before the court which
passed the consent decree. Such an appeal by second defendant was not
maintainable, having regard to the ,express bar contained in section 96(3) of
the Code.

G Re : Point No. (ii)
13. Order XXlll deals with withdrawal and adjustment of suits. Rule 3
relates to compromise-of suits, relevant portion of which is extracted below~

"3. Compromise ofsuit.-Where it is proved to the satisfact.ion of the
H Court that a suit has been adjusted wholly or in part by any lawful
PUSHPA DEVI BHAGAT (D) TH. LR. SMT. SADHNA RAJ "· RAJINDER SINGH [RV RA VEENDRAN.J.] J 85

agreement or compromise in writing and signed by the parties, or A
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 parties to
the suit, whether or not the subject-matter of the agreement, B
compromise or satisfaction is the same as the subject-matter of the
suit."

The said Rule 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 C
parties, the court shall order such agreement or compromise to be recorded
and shall pass a decree in accordance therewith. The second part 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. The Rule also
makes it clear that the compromise or agreement may relate to issues or D
disputes which are not the subject-matter of the suit and that such compromise
or agreement may be entered not only among the parties to the suit, but
others also, but the decree to be passed shall be confined 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. We are not, however, E
concerned with this aspect of the Rule in this appeal.

14. What is the difference between the first part and the second part of
Rule 3 ? The first part refers to situations where an agreement or compromise
is entered into in writing and signed by the parties. The said agreement or
compromise is placed before the court. When the court is satisfied that the p
suit has been adjusted either wholly or in part by such agreement or
compromise in writing and signed by the parties and that it is lawful, a decree
follows in terms of what is agreed between the parties. The agreeme"t/
compromise spells out the agreed terms by which the claim is admitted or
adjusted by mutual concessions or promises, so that the parties thereto can
be held to their promise/s in future and performance can be enforced by the G
execution of the decree to be passed in terms of it. On the other hand, the
second part refers to cases where the defendant has satisfied the plaintiff
about the claim. This may be by satisfying the plaintiff that his claim cannot
be or need not be met or performed. It can also be by discharging or performing
the required obligation. Where the defendant so 'satisfies' the plaintiff in H
386 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A respect of the subject-matter of the suit, nothing further remains to be done
or enforced and there is no question of any 'enforcement' or 'execution' of
the decree to be passed in terms of it. Let us illustrate with reference to a
money-suit filed for recovery of say a sum of Rupees one lakh. Parties may
enter into a lawful agreement or compromise in writing and signed by them,
agreeing that the defendant will pay the sum of Rupees one lakh within a
B specified period or specified manner or may agree that only a sum of Rs.75,000
shall be paid by the defendant in full and final settlement of the claim. Such
agreement or com promise will fall under the first Part and if defendant does
not fulfil the promise, the plaintiff can enforce it by levying execution. On
the other hand, the parties may submit to the court that defendant has already
C paid a sum of Rupees one lakh or Rs.75,000/- in full and final satisfaction
or that the suit claim has been fully settled by the defendant out of court
(either by mentioning the amount paid or not mentioning it) or that plaintiff
will not press the claim. Here the obligation is already performed by the
defendant or plaintiff agrees that he will not enforce performance and nothing
remains to be performed by the defendant. As the order that follows merely
D records the extinguishment or satisfaction of the claim or non-existence of
the claim, it is not capable of being 'enforced' by levy of execution, as there
is no obligation to be performed by the defendant in pursuance of the decree.
Such 'satisfaction' need not be expressed by an agreement or compromise in
writing and signed by the parties. It can be by a unilateral submission by the
E plaintiff or his counsel. Such satisfaction will fall under the second part. Of
course even when there is such satisfaction of the claim or subject matter of
the suit by defendant and the matter falls under the second part, nothing
prevents the parties from reducing such satisfaction of the claim/subject matter,
into writing and signing the same. The difference between the two parts is
this : Where the matter falls under the second part, what is reported is a
F 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. 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. While agreements or compromises falling
G 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 settlements
or satisfaction falling under the second part. Where the matter falls under
second part, it is sufficient if the plaintiff or plaintiffs counsel appears before
the court and inform5 the court that the subject matter of the suit has already
been settled or satisfied.
H
PUSHPA DEVI BHAGAT (D)TH. LR. SMT. SADHNA RAI o·. RAJINDER SINGH [ R.V. RA VEENDRAN,l] ) 87

15. In a suit against the tenant for possession, if the settlement is that A
· the tenant will vacate the premises within a specified time, it means that the
possession could be recovered in execution of such decree in the event of the
defendant failing to vacate the premises within the time agreed. Therefore,
such settlement would fall under the first part. On the other hand, if both
parties or the plaintiff submit to the court that the tenant has already vacated B
the premises and thus the claim for possession has been satisfied or if the
plaintiff submits that he wilt' not press the prayer for delivery of possession,
the suit will be disposed of recording the same, under the second part. ln
such an event, there will be disposal of the suit, but no 'executable' decree.

16. In this case, under the settlement, the tenant undertook to vacate the C
suit property on a future date (that is 22.1.2002) and pay the agreed rent till
then. The decree in pursuance of such settlement was an 'executable' decree.
Tnerefore the settlement did not fall under the second part, but under the first
part of Rule 3. The High Court obviously committed an error in holding that
the case fell under the second part of Rule 3.
D
17. The next question is where an agreement or compromise falls under
the first part, what is the meaning and significance of the words 'in writing'
and 'signed by the parties' occurring in Rule 3 ? The appellant contends that
the words 'in writing' and 'signed by the parties' would contemplate drawing
up of a document or instrument or a compromise petition containing the
terms of the settlement in writing and signed by the parties. The appellant E
points out that in this casr, there is no such instrument, document or petition
in writing and signed by the parties.

18. We will first consider the meaning of the words "signed by parties".
Order 3 Rule I of CPC provides that any appearance, application or act in F
or to any Court, required or authorized by law to be made or done by a party
in such Court, may, except where otherwise expressly provided by any law
for the time being in force, be made or done by the party in person, or by
his recognized agent, or by a pleader appearing, app~ving or acting. m the
case may be, ·on his behalf The proviso thereto makes it clear that the Court
can, if it so desires, direct that such appearance shall be made by the party G
in person. Rule 4 provides that no pleader shall act for any person in any
Court, unless he has been appointed for the purpose by such person by a
doculT'ent in writing signed by such person or by his recognized agent or by
some other person duly authorized by or under a power-of-attornry to make
such appointment. Sub-rule (2) of Rule 4 provides that every such appointment H
388 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A shall be filed in Court and shall, for the purposes of sub-rule (I), be deemed
to be in force until determined with the leave of the Court by a writing signed
by the client or the pleader, as the case may be, and filed in Court, or until
the client or the pleader dies, or until all proceedings in the suit are ended so
far as regards the client. The question whether 'signed by parties' would
B include signing by the pleader was considered by this Court in Byram Pestonji
Gariwala V. Union Bank of India, [ 1992] I sec 31 with reference to Order
3 of CPC :

"30. There is no reason to assume that the legislature intended to
curtail the implied authority of counsel, engaged in the thick of
proceedings in court, to compromise or agree on matters relating to
c the parties, even if such matters exceed the subject matter of the suit.
The relationship of counsel and his party or the recognized agent and
his principal is a matter of contract; and with the freedom of contract
generally, the legislature does not interfere except when warranted by
public policy, and the legislative intent is expressly made manifest.
D There is no such declaration of policy or indication of intent in the
present case. The legislature has not evinced any intention to change
the well recognized and universally acclaimed common law
tradition ........

xxxxx
E
35. So long as the system of judicial administration in India continues
unaltered, and so long as Parliament has not evinced an intention to
change its basic character, there is no reason to assume that Parliament
has, though not expressly, but impliedly reduced counsel's role or
capacity to represent his client as effectively as in the past... .......... .
F
xxxxx

37. We may, however, hasten to add that it will be prudent for counsel
not to act on implied authority except when warranted by the exigency
of circumstances demanding immediate adjustment of suit by
G agreement of compromise and the signature of the party cannot be
obtained without undue delay. In these days of easier and quicker
communication, such contingency may seldom arise. A wise and
careful counsel will no doubt arm himself in advance with the
necessary authority expressed in writing to meet all such contingencies
in order that neither his authority nor integrity is ever doubted
H
PUSHPA DEYl BHAGAT (D) TH. LR. SMT. SADHNA RAI '· RAJINDER SINGH [ R.V. RA VEENDRAN, J.] ) 89

38. Considering the traditionally recognized role of counsel in the A
common law system, and the evil sought to be remedied by Parliament
by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty
and expeditious disposal of cases by reducing the terms of compromise
to writing signed by the parties, and allowing the compromise decree
to comprehend even matters falling outside the subject matter of the B
suit, but ielating to the parties, the legislature cannot, in the absence
of express words to such effect, be presumed to have disallowed the
parties to enter into a compromise by counsel in their cause or by
their duly authorized agents. ·

39. To insist upon the party himself personally signing the agreement C
or compromise would often cause undue delay, loss and inconvenience,
especially in the case of non-resident persons. It has always been
universally understood that a party can always act by his duly
authorized representative. If a power-of-attorney holder can enter into
an agreement or compromise on behalf of his principal, so can counsel,
possessed of the requisite authorization by vakalatnama, act on behalf D
of his client... .. If the legislature had intended to make such a
fundamental change, even at the risk of delay, inconvenience and
needless expenditure, it would have expressly so stated."

[Emphasis supplied]
E
The above view was reiterated in Jineshwardas v. Jagrani, [2003] 11
SCC 372. Therefore, the words 'by parties' refer not only to parties in person,
but their attorney holders or duly authorized pleaders.

19. Let us now turn to the requirement of 'in writing' in Rule 3. In this
case as noticed above, the respective statements of plaintiffs' counsel and F
defendants' counsel were recorded on oath by the trial court in regard to the
terms of the compromise and those statements after being read over and
I
accepted to be correct, were signed by the said counsel. If the terms of a
compromise written on a paper in the form of an application or petition is
considered as a compromise in writing, can it be said that the specific and G
categorical statements on oath recorded in writing by the court and duly read
over and accepted to be correct by the person making the statement and
signed by him, can be said to be not in writing? Obviously, no. We may also
in this behalf refer to Section 3 of the Evidence Act which defines a document
as any matter expressed or described upon any substance by means of letters,
figures or marks or by more than one of those means intended to be used or H
390 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A which may be used for the purpose of recording the matter. The statements
recorded by the court will, therefore, amount to a compromise in writing.

20. Consequently, the statements of the parties or their counsel, recorded
by the court and duly signed by the persons making the statements, would be
'statement in writing signed by the parties'. The court, however, has to satisfy
B itself that the tenns of the compromise are lawful. In this case we find from
the trial court records that the second defendant had executed a vakalatnama
empowering her counsel Sri Dinesh Garg to act for her in respect of the suit
and also to enter into any compromise. Hence there can be no doubt that Sri
Dinesh Garg was authorized by the second defendant to enter into a
C compromise. We also find that the counsel for the plaintiffs and counsel for
the defendants made solemn statements on oath before the trial court specifying
the terms of compromise, which were duly recorded in writing and signed by
them. The requirements of the first part of Rule 3 of Order XXIII are fully
satisfied in this case.

D 21. The matter can be viewed from a different angle also. After the
issues were framed by the trial court, the plaintiffs had examined two witnesses
and closed their evidence and thereafter the matter was set down for the
evidence of defendants. The first defendant was treated as ex parte. As
defendants 2 and 3 did not lead any evidence in spite of numerous
opportunities, their evidence was treated as closed. On 17.5.2001, the matter
E was finally adjourned to 23.5.200 I for the evidence of defendants 4 and 5
with a condition that if they do not lead evidence on that date there evidence
will be closed. On 23.5.2001, defendants 4 and 5 did not lead any evidence.
On the other hand, the counsel for defendants made a statement on oath that
the premises will be vacated on 22.1.2002. Thereafter, counsel for the plaintiff
F also made a statement agreeing to grant of time till 21.1.2002. There was also
agreement that the plaintiffs will be entitled to the payment of only Rs.4,800/
- per month (equivalent to the rent) and nothing more up to 22.1.2002. The
effect of it is that the parties have gone to trial on the issues and the only
evidence led by defendants is that they will vacate the premises on 22.1.2002.
No other evidence being led, the necessary conclusion is that the defendants
G admitted the plaintiffs' c1aim and merely sought time to vacate. Therefore,
the suit can be said to have been decreed on the basis of evidence and the
admissions made by the defendants. In Jineshwardas (supra), such a situation
was noticed. In that case, the High Court made an order on a consensus
expressed by both the learned counsel at the time of hearing of the second
H appeal, that the respondents will pay Rs.25,000/- within a period of one
PUSHPA DEVI BHAGAT (D) TH LR. SMT. SADHNA RAI "· RAJINDER SINGH [ R.V. RA VEENDRAN.J.) J9 J
~

month with interest in the manner stipulated. The appellant subsequently A
filed an application for review, contending that the said order disposing of
the appeal was a compromise decree, and as it was not in writing and signed
by the parties, the appeal could not have been disposed of on the basis of the
submissions. The High Court, however, refused to entertain such objections.
This Court while upholding the decision of the High Court and holding that
there was a valid compromise, also observed : B

"That apart, we are also of the view that a judgment or decree passed
as a result of consensus arrived at before court, cannot always be said
to be one passed on compromise or settlement and adjustment. It
may, at times, be also a judgment on admission, as in this case."
c
22. Strong reliance was placed by the appellant on the following
•. observations of this Court in Gurpreet Singh v. Chatur Bhuj Goel, [1988] l
sec 270 to contend that a compromise should be reduced into writing in the
form of an 'instrument' and signed by the p:irties to be valid under Order 23
Rule 3. He submitted that recording of the statements of the parties or their D
counsel, would not be ari instrument of compromise. An 'instrument',
according to him, connotes a regular document drawn up in the form of an
agreement. We extract below the observations relied on by the appellant :

"10. Under Rule 3 as it now stands, when a claim in suit has been
adjusted wholly or in part by any lawful agreement or compromise, E
the compromise must be in writing and signed by the parties and
there must be a completed agreement between them. To constitute an
adjustment, an agreement or compromise must itself be capable of
being embodied in a decree. When the parties enter into a compromise
during the hearing of a suit or appeal, there is no reason why the
requirement that the compromise should be reduced in writing in the F
form of.an instrument signed by the parties should be dispensed with.
The court must therefore insist upon the parties to reduce the terms
into writing."

We have already referred to the definition of the term document. The term
instrument used in Gurpreet Singh (supra) refers to a writing of a formal
G
~· nature and nothing more. Further, we will have to understand the observations
in the context in which they were made. In that case when the hearing of a
Letters Patent Appeal commenced before the High Court, the parties took
time to explore the possibility of a settlement. When the hearing was resumed
the appellant's father made an offer for settlement which was endorsed by H
392 SUPREME COURT REPORTS (2006) SUPP. 3 S.C.R.
...
A counsel for the appellant also. The respondent who was present also made a
statement accepting the offer. Evidently, the said offer and acceptance were
not treated as final as the appeal was not disposed of by recording those
terms. On the other hand, the said 'proposals' were recorded and the matter •
adjourned for payment in terms of the offer. When the matter was taken up
on the next date of hearing, the respondent stated that he was not agreeable.
B The High Court directed that the appeal will have to be heard on merits as
the respondent was not prepared to abide by the proposed compromise. That
order was challenged by the appellant by contending that the matter was
settled by a lawful compromise by recording the statements of the appellant's
counsel and respondent's counsel, and the respondent could not resile from
c such compromise and therefore, the High Court ought to have disposed of the
appeal in terms of the compromise. It is in this factual background, that is,
where there was no consent decree, the question was considered by this
Court. The distinguishing feature in that case is that though the submissions •
made were recorded, they were not signed by the parties or their counsel. Nor
did the court treat the submissions as a compromise. In this case, the court
D not only recorded the terms of settlement but thereafter directed that the
statements of the counsel be recorded. Thereafter, the statements of counsel
were recorded on oath, read over and accepted by the counsel to be correct
and then signed by both counsel. Therefore in this case, there is a valid
compromise in writing and signed by the parties (represented counsel). The
E decision in Gurpreet Singh (supra) is therefore ofno assistance to the appellant.
23. At the cost of repetition, we may recapitulate the facts of this case.
The suit was a simple suit for possession by a landlord against a tenant filed
in the year 1993. Plaintiffs evidence was closed in 1998. The contesting
defendant (defendant No.2) did not lead any evidence, and her evidence was
F treated as closed. The matter was dragged on for 3 years for defendant's
evidence after the conclusion of plaintiffs evidence. It was noted on 19.5.200 I
that no further adjournment will be granted for the evidence of defendants 4
and 5 (who are not contesting the matter), on the next date of hearing
(23.5.2001). When the matter finally came up on 23.5.2001, no evidence was
tendered. On the other hand, a statement was made agreeing to vacate the
G premises by 22.1.2002. The trial court took care to ensure that the statements
of both counsel were recorded on oath and signed. Thereafter, it passed a ·~
consent decree. The attempts of tenants in such matters to protract the litigation
indefinitely by raising frivolous and vexatious contentions regarding the
compromise and going back on the solemn undertaking given to court, should
H be deprecated. In this context, we may refer to the observation made by this
PUSHPA DEVI BHAGAT (D) TH. LR. SMT. SADHNA RAJ •·. RAJINDER SINGH [RV. RA VEENDRAN,J] 393

Court in a similar situation in Smt. Jamilabai Abdul Kadar v. Shankarlal A
Gulabchand, AIR (1975) SC 2202 :

"23. On the facts of the present case we have little doubt the pleader
has acted substantially with the knowledge of and encouraged by his
client.
B
xxxxx

24. We feel no doubt that the broad sanction for the compromise
came from the tenant, that no shady action is imputable to respondent
4 and that his conduct has been motivated by the good of his client.

25. The last posting was for reporting the compromise. But, on that C
date, the Court declined further adjournment and the party being
absent and away, the pleader for the appellant had no alternative but
to suffer an eviction decree or settle it to the maximum advantage of
his party ..... "

Similar are the facts here. Neither the second defendant nor her legal
D
representative has attributed any improper motive to second defendant's
counsel. The facts go to show nothing further could have been done for the
defendants-tenants. All that the counsel for defendants had done was to get
the maximum advantage to his clients in the circumstances after dragging on
the matter to the extent possible. E
24. This appeal is, therefore, liable to be dismissed as being devoid of
merit. The consent decree is upheld, though for reasons different from those
which weighed with the High Court. The landlords (respondents) will be
entitled to seek mesne profits for the period from 22.1.2002 to date of delivery
of possession in accordance with law. The appeal is accordingly dismissed F
with costs. The costs payable by the appellant are quantified at Rs.25,000.

B.B.B. Appeal dismissed.