S.M. Seeni Ibrahim Sahib & Anr. Vs. S.M. Sultan Ibrahim
EmailAppeal: Civil Appeal Nos. 1936-1937 of 2000
(Arising out of S.L.P. (C) Nos. 11174-11175 of 1999)
Petitioner: S.M. Seeni Ibrahim Sahib & Anr.
Respondent: S.M. Sultan Ibrahim
Apeal: Civil Appeal Nos. 1936-1937 of 2000
(Arising out of S.L.P. (C) Nos. 11174-11175 of 1999)
Judges: S.B. MAJMUDAR & Y.K. SABHARWAL, JJ.
Date of Judgment: Mar 03, 2000
Head Note:
CIVIL LAWS
Code of Civil Procedure 1908
Order 23, Rule 3, Order 32, Rule 15 – Compromise decree – Challenge by the wife of the Appellant No. 1 – Wife claiming to be the guardian of Appellant No. 1 being mentally unsound – Trial Judge setting aside the decree for not following the procedure of Order 23, Rule 3 (Proviso) – Revision allowed by High Court – Whether it was correct on the part of the High Court to allow the revision. Held. Yes, because the provisions of Order 23, Rule 3 should be fol-lowed. Court further directed to decide the application also as per Order 32, Rule 15. Appeal partly allowed. Matter remanded back to trial court.
JUDGEMENT:
ORDER
1. Delay in filing the counter affidavit is condoned.
2. Leave granted.
3. By consent of learned senior Counsel for the parties these appeals are heard finally and are being disposed of by this order.
4. The short question is whether the application being I.A. No. 1010 of 1998 in O.S. No. 662 of 1998 moved on 11th November 1998 before the trial court challenging the compromise decree on the grounds mentioned therein, requires to be reconsidered on merits after hearing the parties concerned. It is contended that Appellant No. 2, who is the wife of Appellant No. 1 who is allegedly mentally unsound, had entered into a compromise with the Respondent which was contrary to law. She, therefore, claims to be the guardian of Appellant No.1 and moved the trial court for setting aside the said decree. The learned trial judge, without following the appropriate procedure as laid down by proviso to order 23 Rule 3, Code of Civil Procedure (C.P.C.) set aside the decree. In the revision filed by the Respondent-decree holder the High Court rightly held by the impugned judgment and even on consent by learned Senior Counsel for the Appellant that the procedure adopted by the trial court was not correct. The Revision Application was, therefore, allowed.
5. However, in our view, a further order was required to be passed by the High Court directing the proceedings to be remanded to the trial court for fresh decision on merits accordingly to the provisions of Order 23 Rule 3 as also Order 32 Rule 15, C.P.C. As that was not done, only on this short ground these appeals are partly allowed. The final/consequential direction which was required to be issued by the High Court is hereby issued now to the effect that the proceedings will stand remanded to the trial court with a direction to re-decide the aforesaid application moved by Appellant No. 2-wife purporting to be the guardian of Appellant No. 1, who is alleged to be mentally un-sound and to decide the question whether the impugned Consent Decree was legal or not.
6. We make it clear that we make no observations on the contro-versy between the parties. The Civil Appeals are partly allowed accordingly. No costs.
1. Delay in filing the counter affidavit is condoned.
2. Leave granted.
3. By consent of learned senior Counsel for the parties these appeals are heard finally and are being disposed of by this order.
4. The short question is whether the application being I.A. No. 1010 of 1998 in O.S. No. 662 of 1998 moved on 11th November 1998 before the trial court challenging the compromise decree on the grounds mentioned therein, requires to be reconsidered on merits after hearing the parties concerned. It is contended that Appellant No. 2, who is the wife of Appellant No. 1 who is allegedly mentally unsound, had entered into a compromise with the Respondent which was contrary to law. She, therefore, claims to be the guardian of Appellant No.1 and moved the trial court for setting aside the said decree. The learned trial judge, without following the appropriate procedure as laid down by proviso to order 23 Rule 3, Code of Civil Procedure (C.P.C.) set aside the decree. In the revision filed by the Respondent-decree holder the High Court rightly held by the impugned judgment and even on consent by learned Senior Counsel for the Appellant that the procedure adopted by the trial court was not correct. The Revision Application was, therefore, allowed.
5. However, in our view, a further order was required to be passed by the High Court directing the proceedings to be remanded to the trial court for fresh decision on merits accordingly to the provisions of Order 23 Rule 3 as also Order 32 Rule 15, C.P.C. As that was not done, only on this short ground these appeals are partly allowed. The final/consequential direction which was required to be issued by the High Court is hereby issued now to the effect that the proceedings will stand remanded to the trial court with a direction to re-decide the aforesaid application moved by Appellant No. 2-wife purporting to be the guardian of Appellant No. 1, who is alleged to be mentally un-sound and to decide the question whether the impugned Consent Decree was legal or not.
6. We make it clear that we make no observations on the contro-versy between the parties. The Civil Appeals are partly allowed accordingly. No costs.
