Sangeet Lodha, J.@mdashThis appeal is directed against order and decree dated 4.4.97 passed by Additional District Judge No. 2, Hanumangarh, whereby the suit preferred by the plaintiff- respondent No. 1 herein, has beep decreed in terms of the compromise arrived at between the plaintiff and the defendant Nos. 1 and 2, the respondent Nos. 2 and 3 respectively herein.
2. The brief facts giving rise to this appeal are that the plaintiff Shri Hermale Singh preferred a suit for specific performance of contract against the defendants Smt. Dhan Kaur widow of Shri Kala Singh and Ram Singh, adopted son of Shri Kala Singh, inter alia stating therein that 7 bighas of land situated in Chak 17-GGR, Stone No. 186/272, bearing Khasra Nos. 12, 13 and 18 to 22 and 5 bighas & 15 biswas land, situated in Chak No. 13- GGR were purchased by him from Kala Singh through his Power of Attorney Holder Basant Singh vide agreement dated 28.7.84. It is alleged that 7 bighas of land situated in Chak No. 17-GGR was agreed to be sold for a consideration of Rs. 15,000/- per bigha and 5 bighas & 15 biswas of land comprising Chak No. 13-GGR was agreed to be sold for a consideration of Rs. 10,000/- per bigha. It was further averred in the plaint that an amount of Rs. 90,000/- towards the consideration for 7 bighas of land comprising Chak No. 17-GGR and Rs. 10,000/- towards the land comprising Chak No. 13-GGR was paid to the Power of Attorney Holder of Shri Kala Singh in advance. It is stated that before the sale deed could be executed in pursuance of aforesaid agreement to sell, Shri Kala Singh expired on 4.10.84, therefore, a suit for specific performance of the contract was filed by the plaintiff Hermale Singh against Smt. Dhan Kaur, widow of Kala Singh and Shri Ram Singh, adopted son of Kala Singh regarding 7 bighas land comprising Chak No. 17-GGR. Regarding 5 bighas and 15 biswas of land comprising Chak 13- GGR, it was stated that the said land belong to Sher Singh s/o Budh Singh and Shri Kala Singh was only in cultivatory possession thereof, therefore, he had no right to transfer the said land. Accordingly, while terminating the agreement to that extent, the suit for specific performance of the contract was preferred by the plaintiff Hermale Singh only with regard to the land comprising Chak No. 17-GGR.
During the pendency of the suit, a compromise arrived at between the plaintiff Hermale Singh and the defendant Smt. Dhan Kaur was filed before the learned trial Court. In the meantime, Shri Mohar Singh, the appellant herein, preferred an application for impleading him as party defendant in the suit on the strength of an agreement to sell dated 3.6.85, whereby Smt. Dhan Kaur had agreed to sell the said land comprising Chak No. 17.GGR to Mohar Singh, took an advance of Rs. 20,000/- and handed over the possession of the land.
Smt. Dhan Kaur expired on 1.5.88, therefore, an application under Order 22 Rule 4 of C.P.C. was preferred by one Shri Attar Singh claiming himself to be an adopted son of Smt. Dhan Kaur. The defendant No. 2 Shri Ram Singh also preferred an application under Order 22 Rule 4 stating therein that the application has been preferred by Shri Attar Singh in collusion with the plaintiff Shri Hermale Singh with an intention to grab the land in question whereas, he is the only surviving legal heir of Smt. Dhan Kaur, therefore, he alone should be permitted to defend the suit. An application under Order 22 Rule 4 was also preferred on behalf of the appellant Mohar Singh. In the meantime, the defendant No. 2 Shri Ram Singh filed the written statement contesting the suit.
On 5.1.89, the plaintiff preferred an application under Order 22 Rule 6 C.P.C. stating therein that he has not claimed any relief against the defendant No. 2 Shri Ram Singh, therefore, the suit may be decreed in terms of the compromise arrived at in between the plaintiff and Smt. Dhan Kaur dated 21.11.87 already placed on record. The said application preferred by the plaintiff Hermale Singh was rejected by the learned trial Court vide order dated 19.2.1991, inter alia on the ground that the issue as to whether Smt. Dhan Kaur was the sole owner of the land in question and was competent to enter into compromise has to be decided on the basis of evidence to be placed on record by the parties. Besides, taking note of the pendency of the application preferred by the appellant Mohar Singh and the fact that the suit is being contested by defendant No. 2 Shri Ram Singh, the learned trial Court arrived at the finding that the application preferred by the plaintiff under Order 22 Rule 6 cannot be entertained and that so far as the passing of the compromise decree under Order 23 Rule 3 of C.P.C. is concerned, the same shall be considered after the due trial.
The application preferred by Shri Mohar Singh for impleading him as party defendant in the suit was not opposed by the plaintiff and accordingly, the same was allowed by the learned trial Court vide order dated 14.1.94 and the appellant Mohar Singh was impleaded as party defendant No. 3 in the suit. The application preferred by Shri Attar Singh and Ram Singh under Order 22 Rule 4 CPC were also not opposed by the plaintiff and the same were allowed vide order dated 11.2.94.
3. It is relevant to mention herein that during the pendency of the suit, in a proceedings u/s 145 Cr.P.C, the possession of the land was handed over to Shri Hermale Singh vide order dated 5.12.92 passed by Assistant Collector and Magistrate, Sangaria. The validity of the said order was assailed by the appellant Mohar Singh by way of Criminal Misc. Petition No. 528/92 before this Court, which was allowed vide order dated 8.10.93 and the possession of the land in question was ordered to be handed over to the appellant Mohar Singh. The Tehsildar, Tibbi was directed to recover a sum of Rs. 1,03,075/- towards the mesne profit from Hermale Singh and deposit the same in fixed deposit account in the scheduled bank for one year and further to give the said amount to the person in whose favour ultimately, the suit is decided.
The plaintiff Hermale Singh preferred an application under Order 6 Rule 17 CPC for amendment of the plaint stating therein that after the death of Smt. Dhan Kaur, her legal heir Attar Singh has been taken on record and Mohar Singh has also been impleaded as party defendant in the suit, therefore, defendant No. 2 Ram Singh no more remains a necessary party to the suit. It was further stated that in a proceeding u/s 145 Cr.P.C, the possession of the land has been handed over to Shri Mohar Singh, therefore, it has become necessary to amend the plaint. However, the application preferred by the plaintiff for amendment of the plaint was rejected by the trial Court vide order dated 16.3.96.
On 20.9.96, a compromise alleged to have been entered into between the plaintiff and Attar Singh, defendant No. 1/1 was filed before the learned trial Court stating therein that the suit may be decreed in favour of the plaintiff as prayed for. While taking the said compromise on record and attesting the same, the learned trial Court passed an order vide order dated 20.9.96 directing that the appropriate order on the said compromise shall be passed at the time of the decision of the suit.
On 15.11.96, yet another compromise alleged to have been entered into between the plaintiff and the defendant No. 2 Ram Singh was filed, which was also attested by the learned trial Court vide order dated 15.11.96, with the direction that the appropriate order on the same shall be passed at the time of the decision of the suit.
On 1.2.97, the plaintiff preferred yet another application under Order 12 Rule 6 read with Order 23 Rule 3 CPC. During the course of the arguments on the said application, the plaintiff preferred yet another application under Order 1 Rule 10(2) CPC for deleting the name of defendant No. 3 Shri Mohar Singh, the appellant herein from the array of the defendants.
The application preferred under Order 1 Rule 10(2) CPC supra was rejected by the learned trial Court vide order dated 13.3.97 holding that the defendant No. 3 is a necessary party for adjudication of the dispute involved in the suit.
A written statement was filed on behalf of the defendant No. 3 appellant herein, before the learned trial Court on 15.11.96 and a counter claim was filed on 4.4.07, wherein inter alia a decree declaring the agreement dated 28.7.84 said to be entered into between the plaintiff and the Power of Attorney Holder of Shri Kala Singh, compromise dated 20.9.96 and 15.11.06 said to have been entered between the plaintiff and the defendants No. 1 and 2, as invalid, was sought for. Besides, a permanent injunction was also sought against the plaintiff Hermale Singh not to interfere with the cultivatory possession of the defendant No. 3 on the land in question.
However, the application preferred by the plaintiff under Order 12 Rule 6 read with Order 23 Rule 3 CPC for passing of the decree in terms of the compromise arrived at in between the plaintiff and defendant No. 1 dated 15.9.96 and the plaintiff and defendant No. 2 dated 15.11.96 was allowed by the learned trial court and the suit preferred by the plaintiff has been decreed vide order dated 4.4.97 holding that the appellant, defendant No. 3 Mohar Singh has been impleaded as defendant No. 3 in the suit on his own application and no relief has been claimed against him in the suit, therefore, the decree in terms of compromise arrived at between the plaintiff and defendant Nos. 1/1 and 2 cannot be denied. Hence, this appeal on behalf of the appellant, defendant No. 3 in the stilt.
4. It is contended by Mr. Vikas Balia, the learned Counsel appearing on behalf of the appellant that the learned trial Court was under an obligation to pronounce a single judgment in the suit, both on the original claim made by the plaintiff and on the counter claim submitted on behalf of the appellant. The learned Counsel submitted that the suit claim and the counter claim ought to be regarded as constituting a single proceedings and particularly, on the facts and in the circumstances of the case, the suit claim could not have been decided keeping the counter claim pending. The learned Counsel submitted that the compromise if ultimately found to be valid could have been given effect to only after the court had finally adjudicated upon the controversy between the plaintiff and the appellant-defendant No. 3. The learned Counsel contended that the decree which has been passed without consent of all the parties to the suit cannot be regarded as consent decree and cannot be given effect to. Drawing the attention of this Court to the order dated 19.2.91 passed by the learned trial Court whereby the application preferred by the plaintiff under Order 22 Rule 6 was rejected and it was ordered that the matter with regard to grant of decree on the basis of the compromise arrived at between the plaintiff and Smt. Dhan Kaur, can be considered after the trial, the learned Counsel submitted that in view of the said order, the learned trial Court could not have considered the grant of the decree on the basis of the subsequent compromises said to have been entered into in between the plaintiff and defendant No. 1/1 and defendant No. 2. The learned Counsel submitted that even on compromise dated 15.9.96 and 15.11.96 having been filed, the learned trial Court had specifically ordered that the orders on the same shall be passed at the time of final decision of the suit. In this view of the matter, the learned trial Court has exceeded its jurisdiction in entertaining an application preferred by the plaintiff under Order 12 Rule 6 read with Order 23 Rule 3 of CPC and passing the decree on the basis of said compromise dated 15.9.96 and 15.11.96.
5. The learned Counsel further submitted that admittedly the possession of the land in question was with the appellant and in the counter claim, the appellant had sought the declaration that the agreement said to have been executed in between the plaintiff and the Power Attorney Holder of Shri Kala Singh so also the compromise dated 15.9.96 and 15.11.96 may be declared illegal, therefore, the question of passing of the decree on the basis of the compromise arrived at in between some of the parties to the suit, does not arise. Moreover, on the basis of the decree passed, the plaintiff does not become entitle for the possession of the land in question and the rights of the appellant have obviously been adversely effected on account of the decree passed on the basis of the compromise arrived at between the parties. Accordingly, it is urged that so as to avoid the multiplicity of the proceedings, it was absolutely necessary for the learned trial Court to decide the suit claim and counter claim by a single judgment after the trial in accordance with law. In support of the contentions raised, the learned Counsel has relied upon following decisions of the various High Courts:
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6. Per contra, it is contended on behalf of the learned Counsel appearing on behalf of the respondents that in view of the provisions of Section 96(3) of CPC, no appeal is maintainable against the decree passed by the trial Court with the consent of the parties. Moreover, the appellant cannot be said to be a person aggrieved by the decree passed by the learned trial Court in favour of the plaintiff in pursuance of compromise arrived at between the plaintiff and defendant No. 1 and 2. The learned Counsel submitted that even after decision of the suit claim, the counter claim filed on behalf of the appellant which has been separately registered, survives. Therefore, none of the rights of the appellant are affected by the impugned compromise decree passed by the learned trial Court.
7. The learned Counsel contended that the counter claim submitted by the appellant was only against the co-defendants and therefore, on that basis the suit cannot be permitted to converted into an interpleader suit. In support of the contention, the learned Counsel relied upon a decision of the Hon''ble Supreme Court in the matter of Rohit Singh and Ors. v. State of Bihar 2007(1) WLC (SC) 105
8. It was further contended by the learned Counsel that admittedly, the appellant is a subsequent transferee who cannot set up any claim or right against the plaintiff even if, the transfer in his favour has been affected without notice of the original transfer. In this regard, the learned Counsel relied upon a decision of the Hon''ble Supreme Court in the matter of Ramakant Tripathi v. Smt. Sheela Devi and Anr. 1995 (4) CCC (SC) 213.
9. The learned Counsel urged that Order 23 Rule 3 CPC not only permits partial compromise and adjustment of a suit by a lawful agreement but further gives a mandate to the Court and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit and if the compromise was lawful, the decree to extent it was a consent decree, is not appealable on account of expressed bar in Section 96(3) of CPC. In this regard, the learned Counsel relied upon the judgment of the Supreme Court in the matter of
10. The learned Counsel submitted that passing of the impugned order granting the compromise decree does not amount to review of the earlier order dated 19.2.91 inasmuch as, in the earlier compromise arrived at, the defendant No. 2 had not consented for the compromise decree. The learned Counsel submitted that on the basis of pendency of the counter claim, the passing of the compromise decree was not opposed by the appellant in the trial Court, therefore, at this stage, he cannot be permitted to raise such grounds.
11. Lastly, learned Counsel contended that the appellant was not party to the compromise arrived at, therefore, the compromise decree was not binding upon him and the same does not operate as res judicata as against the appellant and he is free to pursue his counter claim and the suit pending before the court of competent jurisdiction, therefore, the appeal preferred by the appellant is devoid of any merit.
12. I have considered the rival submissions of the learned Counsel for parties and perused the record.
13. It is to be noticed that as per Order 8 Rule 6-A(i), a defendant in a suit is entitled to set up by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but, before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Rule 6-A(2) provides that such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on original claim and on the counter claim. Rule 6-C provides that where a defendant sets up a counter claim and plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim but, in an independent suit, the plaintiff may, at any time, before the issues are settled in relation to the counter claim, apply to the court for an order that such counter claim may be excluded and the court may on the hearing of such application make such order as it thinks fit.
Thus, conjoint reading of the provisions of Rule 6-A(2) and Rule 6-C shows that generally, the suit claim and the counter claim are regarded as unified proceedings and required to be disposed of by the trial Court by a single judgment unless, on an application being preferred on behalf of the plaintiff, a specific order is passed by the trial Court that the counter claim shall be tried as an independent suit. Obviously, the decision of the trial court on such issue shall depend upon the facts and circumstances of each case. This question has been aptly dealt with by the Hon''ble Madras High Court in the matter of "T.K.V.S. Vidhya Purnachari sons and Ors. case (supra). While considering the provisions of Order 8 Rule 6-A and 6-C, the Court held as under:
...XX...However, there are strong indications to the contrary to be found in the Code in the conception of the counter-claim especially as provided for Order 8, Rule 6-A. This rule speaks of a counter-claim as a plant in one place and as a cross claim in another place. Nevertheless, in its most operative provision, it lays down that the court shall pronounce a single judgment in the suit, both on the original claim and on the counter-claim. The susceptibility of a counter-claim to be dealt with in a single judgment alongwith a suit claim, in my opinion, runs counter to the idea of the two being regarded as things apart. It is not merely that the Code provides for a single judgment to dispose of, at one stroke, the suit claim as well as a counter-claim, like hitting two birds with one stone. But Rule 6-C specifically lays down a special procedure to separate the suit claim from the counter-claim, wherever the separation is called for. This provision emphasises by implication that as a general rule a suit claim and a counter-claim ought properly to be regarded as constituting a unified proceeding. The rule, however, makes for an exception, and it is this should the plaintiff in a given case desire that the counter-claim filed by the defendant in answer to his suit claim be dealt with as a separate suit in itself, he ought to apply for that relief before the trial Court and it should be done before the issues are settled. On his application for amending his suit claim and the counter-claim, the court will have to consider whether the counterclaim should be dealt with as part and parcel of the suit or whether the defendant should be referred to a separate suit. These exceptional provisions in Rule 6-C only illustrate the homogeneity of the suit claim and the counter-claim as a single proceeding.
Similarly, in Bheem Sain''s case (supra), Hon''ble Punjab & Haryana High Court while dealing with the provisions of Order 8 Rule 6-A to 6-G, observed that the provision for counter-claim is to enable the court to pronounce judgment in one and the same proceedings which is based on broader principles of public policy that there should be avoidance of multiciplicity of proceedings.
14. Adverting to the facts of the present case, it is to be noticed that Smt. Dhan Kanwar widow of Kala Singh had entered into an agreement to sell the land in question to the appellant which was subject matter of the suit originally filed by the respondent Hermale Singh against Smt. Dhan Kanwar and Shri Ram Singh, said to be an adopted son of late Shri Kala Singh. The appellant was arrayed as party defendant in the matter by the learned trial Court only for the reason that he had claimed his rights over the land in question on the strength of an agreement to sell existing in his favour and admittedly, he was in possession of the disputed land. It is also not in dispute that the counter-claim submitted by the appellant before the learned trial Court was in conformity with the provisions of Order 8 Rule 6-A CPC. It is to be noticed that in the counter claim, the appellant had challenged the validity of the agreement dated 28.7.84, alleged to have been entered into in between the plaintiff Hermale Singh and late Shri Kala Singh through his power of Attorney Holder. Besides, the appellant had also challenged the validity of the compromise dated 15.9.96 entered into in between the plaintiff Shri Hermale Singh and defendant No. 1/1 Shri Attar Singh so also the compromise dated 15.11.96 alleged to have been entered into between the plaintiff Shri Hermale Singh and defendant No. 2 Shri Ram Singh. Thus, for effective and complete adjudication of the dispute between the parties to the suit, it was incumbent upon the learned trial Court to decide the claim in the suit and the counter-claim as single proceedings, finally, after due trial by a common judgment. On the facts and in the circumstances of the case, the learned trial court could not have decided the suit keeping the counter claim pending on the basis of the compromise arrived at between the plaintiff and some of the defendants.
15. It is to be noticed that in the first instance, on 5.1.89 an application under Order 22 Rule 6 CPC was preferred by the plaintiff Hermale Singh before the learned trial Court stating therein that he has not claimed any relief against the defendant No. 2 Shri Ram Singh, therefore, the suit may be decreed in terms of compromise dated 21.11.87 arrived at in between the plaintiff and Smt. Dhan Kanwar, already placed on record. However, said application was rejected by the learned trial Court on the ground that issue as to whether Smt. Dhan Kanwar was the sole owner of the land in question and was competent to enter into alleged compromise, has to be decided on the basis of the evidence to be placed on record by the parties. It is pertinent to note that Shri Attar Singh, who was arrayed as party defendant in the suit, was claiming the rights in the land in question claiming himself to be an adopted son of Smt. Dhan Kanwar, therefore, even after, his impleadment as the defendant, the position with regard to the ownership of the land had not changed. That apart, even on the compromise dated 15.9.96 said to have been entered into between the plaintiff Shri Hermale Singh and defendant No. 1/1 Shri Attar Singh, the learned trial Court had already passed an order dated 20.9.96 directing that appropriate order on the said compromise shall be passed at the time of decision of the suit. Similarly, on yet another compromise dated 15.11.96 entered into between the plaintiff and the defendant No. 2 Ram Singh, the learned trial Court vide order dated 15.11.96 directed that appropriate order on the said compromise shall be passed at the time of final decision of the suit. Therefore, there was absolutely no occasion for the learned trial Court to pass the impugned decree, entertaining yet another application dated 1.2.97 preferred by the plaintiff under Order 12 Rule 6 read with Order 23 Rule 3 CPC, even ignoring order dated 13.3.97, passed on an application preferred by the plaintiff under Order 1 Rule 10 CPC, rejecting the prayer of the plaintiff for deletion of the name of The appellant-defendant No. 3 from the array of the respondents holding that he is a necessary party for adjudication of the dispute involved in the suit. Thus, having taken a view that the lis between the parties has to be decided after taking into consideration the defence to be set out by the appellant-defendant No. 3, there was no occasion for the learned trial Court to review the earlier order indirectly and to take a view that the consent decree can be passed on the basis of the compromises arrived at in between the plaintiff and defendant No. 1/1 and defendant No. 2.
16. There is yet another aspect of the matter which has escaped attention of the learned trial Court. Admittedly, the possession of the land in question was handed over to the appellant defendant No. 3 in pursuance of judgment dated 8.10.93 passed by this Court in Criminal Misc. Petition No. 528/92 arising out of an order dated 5.12.92 passed by the Assistant Collector-cum-Magistrate, Sangaria in the proceedings u/s 145 Cr.P.C. Vide said order dated 8.10.93, this Court had further directed to recover an amount of Rs. 1,03,075/- from the respondent Shri Hermale Singh and deposit the said amount in a fixed deposit account in a scheduled bank for a period of one year and the same was to be given to the person in whose favour ultimately, the pending suit is decided. Obviously, the said order was passed by this Court recognising the rival claims of the parties in regard to the land in question. For this reason also, the learned trial Court acting fairly and in interest of justice so as to adjudicate the lis between the parties finally and completely, should have refrain from passing the decree on the basis of the compromise arrived at in between the plaintiff and the defendant No. 1/1 and defendant No. 2 ignoring the claim of the defendant No. 3 in the land in question altogether, on the ground that the defendant No. 3 has been arrayed as party defendant in the suit on his own application and no relief has been claim by the plaintiff against him.
17. Further, the submission of the learned Counsel for the respondent that the counter claim preferred by the appellant was only against the co-defendants appears to be factually incorrect. As noticed above, in the counter claim, the appellant has challenged the validity of the agreement dated 28.7.84 itself on the basis of which the respondent-plaintiff had claimed decree of specific performance of the contract. Besides, the appellant had also challenged the validity of the compromise dated 15.9.96 entered into in between the plaintiff Shri Hermale Singh and defendant No. 1/1 Shri Attar Singh so also the compromise dated 15.11.96 alleged to have been entered into between the plaintiff Shri Hermale Singh and defendant No. 2 Shri Ram Singh. Therefore, on the basis of counter claim, the question of converting the suit into an inter pleader suit does not arise. Therefore, the decision of the Hon''ble Supreme Court in the matter of Rohit Singh''s case (supra) has no application on the facts and in the circumstances of the present case.
18. Coming to the contention of the learned Counsel appearing on behalf of the respondents that the appeal preferred by the appellant against the decree passed by the trial Court with the consent of the parties, is barred by provisions of Section 96(3) of CPC, it is to be noticed that the impugned decree has been passed by the learned trial Court on the basis of the compromise arrived at in between the plaintiff and defendant No. 1/1 and 2, the appellant-defendant No. 3 was not party to the said compromise. If a decree has been obtained by consent then, bar created by Section 96(3) shall operate against the persons who were parties to the compromise and not against the person, who has not consented for the compromise decree. A party to the suit whose rights are affected by a compromise decree for which he had not consented, is not precluded from assailing the validity of the decree by way of an appeal u/s 96 of the CPC. In D.G. Palekar''s case relied upon by the learned Counsel for the respondent, the Hon''ble Supreme Court while dealing with the question of appeal in the matter of consent decree, has observed as under:
59. Be that as it may, the bar to an appeal against a consent decree in Sub-section (3) of Section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forgo their right of appeal by any lawful agreement or compromise, or even by conduct. Therefore, as soon as the parties made the agreement to abide by the determination in the appeal and induced the court to pass a decree in terms of that agreement, the principle of estoppel underlying Section 96(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties...XXXX...
Thus, the decree obtained in terms of the compromise is binding between the parties who has obtained the decree by consent. Any other person party to the suit if aggrieved by the compromise decree is not precluded from assailing the validity thereof by way of appeal notwithstanding the provisions of Section 96(3) of the CPC.
19. The contention of the learned Counsel that Order 23 Rule 3 CPC permits partial compromise and adjustment of the suit by a lawful agreement and the court is under an obligation to pass a decree in terms of such compromise or adjustment in so far as it relates to the suit is also devoid of any merit. The impugned compromise decree passed by the learned trial Court cannot be said to be a partial compromise or adjustment between the parties to the suit. As a matter of fact, it is the consent decree obtained by some of the parties to the suit settling their inter se dispute by way of compromise, ignoring the rights and claim of other party to the suit. Therefore, the provisions of Order 23 Rule 3 permitting partial compromise of the suit, sought to be invoked by the respondent in support of the impugned decree does not help him in any manner.
20. Lastly, coming to the contention of the learned Counsel to the respondents that the appellant being a subsequent transferee cannot set up any claim or right against the plaintiff even if, the transfer in his favour has been affected without notice of the original transfer, it is to be noticed that by way of counter claim, the appellant has assailed the genuiness of the agreement entered into in between the plaintiff and power of attorney holder of late Shri Kala Singh and further under the law, he is entitled to oppose the decree for specific performance of contract in favour of the plaintiff on the ground that he is a bona fide transferee for value without notice of earlier agreement, therefore, the contention of the learned Counsel that the petitioners cannot set up any claim or right against the plaintiff as a subsequent transferee, is devoid of any merit. The decision of the Hon''ble Allahabad High Court in the matter of Smt. Munni Devi''s case (supra) relied upon by the learned Counsel which relates to a transfer effected during the lis pendence, has no application whatsoever on the facts and in the circumstances of the case.
21. In view of the discussion above, the impugned consent decree passed by the learned trial Court ignoring the pendency of the counter claim submitted by the appellant is ex facie erroneous and not sustainable in eye of law.
In the result, the appeal succeeds, it is hereby allowed with costs. The impugned order and decree dated 4.4.97 passed by the Additional District Judge No. 2, Hanumangarh in Civil Suit No. 131/96 is set aside. The matter is remanded to the trial Court with the direction to decide the claim in the suit and the counter claim submitted by the appellant defendant No. 3 together as a unified proceedings, finally, after due trial by a common judgment. Since, the parties are indulged in litigious battle for years together, therefore, in the interest of justice, it is directed that the suit and the counter claim shall be decided by the learned trial Court as aforesaid, expeditiously, preferably, within a period of one year from the date of this order.
