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CASE NO.: Appeal (civil)  735 of 2008

PETITIONER: S. RATNA

RESPONDENT: SRI SRI SRI SHIVAKUMAR & ANOTHER

DATE OF JUDGMENT: 28/01/2008

BENCH: P.P. NAOLEKAR & LOKESHWAR SINGH PANTA

JUDGMENT: JUDGMENT

                       O R D E R   

CIVIL APPEAL NO.  735 OF 2008 [ARISING OUT OF S.L.P.(C) NO. 17567 OF 2006]

1.                Leave granted.

2.             S. Jayanth and S.Reshma, son and daughter of appellant had filed a Suit  being O.S. No. 350 of 1993 for partition of the suit property against their father  P. Satyananda and grand-parents C.V. Chinnaiah and C.V. Parvathamma.  During the pendency of the suit, S.Reshma-plaintiff and three defendants  namely; P. Satyananda, Chinnaiah and Parvathamma expired.  After the death  of S. Reshma-plaintiff, her mother S. Ratna was brought on record as legal heir.  

3.           A compromise application was filed before the trial court by plaintiff-  S.Jayanth and S.Ratna and in lieu thereof a compromise decree was passed on  30.9.2004. During the pendency of the suit, respondent No. 1 had filed an  application under Order 1  Rule 10 of Code of Civil Procedure  being Misc.  Application No. 8 of 2002 in  

the Original Suit for impleading him as a party defendant to the proceedings.   The said application was rejected by the trial court by its order dated 3.3.2004.   Respondent No. 1, instead of filing an appeal against the order of refusal to  implead him as a party, preferred a first appeal under Section 96 of C.P.C.  before the High Court challenging the compromise decree passed by the trial  court on 30.9.2004.  When the matter came up  before the       High Court, a  memo is alleged to have been filed by the respondents in the appeal namely; S.  Jayanth and S. Ratna stating that they had no objection to set aside the  compromise decree dated 30.9.2004  and to implead  respondent No. 1  as  defendant in Original Suit No. 350 of 1993. Acting on that memo, the High  Court by impugned order dated 9.8.2006 set aside the compromise decree  without going into the merits or demerits of the case and remanded the matter to  the trial court to proceed with the suit on merits after impleading respondent No.  1 as party to the suit.  Aggrieved by the said order of the High Court, the present  appeal has been  filed.

4.           It is submitted by learned counsel for the appellant that the appeal filed by  the stranger to the proceedings without he being impleaded as a party was not  maintainable   at  all.  Apart from this, the compromise

decree dated 30.9.2004 between the parties, i.e. the appellant and  respondent

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No. 2 could not have been set aside only on the request made by one opposite  party when the other opposite party had not made  such a request for setting  aside  the compromise decree.  It is well settled that the compromise decree can  be set aside only on the joint prayer of the parties to the compromise and not on  the basis of assertion or request to that effect by one of the parties.  In pursuance  of our order dated 15.1.2008, the appellant has produced before us the Memo of  Consent filed before the High Court.   From that Memo also, it is clear that the  Memo was filed and signed by respondent No. 2 herein S. Jayanth (respondent  No. 1  in the appeal before the High Court) and not by the appellant S. Ratna  (respondent No. 2 in the appeal before the High Court).   The High Court has  committed an error in setting aside the compromise decree and remanding the  matter  to the trial court for hearing on the suit in accordance with law on its  own merits.

5.            We, therefore, set aside the impugned order of the High Court and remand  the matter to the High Court to hear  Regular  First  Appeal  No. 1353 of 2004  afresh in  

accordance with law.  Appeal is, accordingly, allowed with costs of Rs. 10,000/-  which shall be paid by respondent No. 1.