JUDGEMENT
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(1.)Leave granted.
(2.)The appellant who is the defendant in Suit No. 309 of 1972 challenges the judgment of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 whereby the High Court held that the decree made against the defendant in terms of a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, was valid and binding on the parties, and in the absence of any challenge against the order made under Order XXI, Rule 23, Civil Procedure Code allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons. The High Court found that the decree was valid and in accordance with the provisions of Order XXIII, Rule 3, as amended by the C.P.C. (Amendment) Act, 1976.
(3.)The only question which arises for consideration is as regards the construction of Order XXIII, Rule,3, C.P.C. We shall read this provision, as amended by the C.P.C. (Amendment) Act, 1976, bracketing the newly added words:
"O. 23, R. 3- Compromise of suit- 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 parties) or where the defendant satisfied 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, compromise or satisfaction is the same as the subject matter of the suit:)
(Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.)
(Explanation. - An agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule.)"