Legal Provisions of Order XXIII of Code of Civil Procedure, 1908 (C.P.C.), India – Withdrawal and Adjustment of Suits

The plaintiff who has already moved an application under Order XXIII, Rule (1) cannot withdraw the application for withdrawal of the suit, even before the orders are passed on the withdrawal application, i.e., that the suit is, as far as the plaintiff is concerned, struck off from the file. This is on the assumption that there is withdrawal in fact as well as in law.

The question would not arise if there is withdrawal of suit in fact but not in law. For example, when the plaintiff says that the withdrawal was vitiated by the fraud practised on him by any opposite party, in which case there is no withdrawal in law. The right to withdraw the suit is not fettered by any conditions.

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It is an absolute right which a plaintiff can exercise at his sweet will at any time before the judgment is delivered. Since withdrawing a suit is a unilateral act to be done by the plaintiff, it requires no permission or order of the court and is not subject to any condition; it becomes effective as soon as it is done just as a compromise does.

On withdrawal certain orders may be passed by the court but they are not for giving effect to the withdrawal, but to give effect to consequence arising out of the withdrawal. Order XXIII, Rule 1 (1) does not require any order.

The petitioner the widow of freedom fighter was given leave and license for shop on compassionate ground. She misused the leave and license and notice to revoke license was issued. She filed writ petition against revocation of license. The affidavit filed by her in the High Court was not even signed by her and she failed to appear before High Court to explain it.

The compassionate grounds and the liberties given were being abused by her. Therefore, the High Court was not right in giving liberty to the petitioner to withdraw writ petition and to file another writ petition on the same cause of action.

No case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of earlier suit was made out by the plaintiffs under Order XXIII, Rule 1, when they failed to produce any evidence to show that the permission to withdraw the earlier suit was given the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject-matter.

The suit was also dismissed as barred by limitation. The time cannot be excluded under S. 14 of the Limitation Act, 1963 as plaintiffs miserably failed to show as to what was the defect of jurisdiction or like nature by reason of which the earlier suit was not entertainable or competent.

Raisa Sultana Begam v. Qadir:

The right to withdraw has been expressly conferred by Rule 1 (1); there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that the right to withdrawal includes in itself a right to revoke the withdrawal:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII (suits by or against minors) extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.

An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. [Order XXIII, Rule 1 (2)].

Where the court is satisfied—

(a) That a suit must fail by reason of some formal defect; or

(b) That there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. [Order XXIII, Rule 1 (3)].

The court allows permission to withdraw the suit on being satisfied: (a) that the suit must fail by reason of some formal defect, i.e., misjoinder of parties or cause of action or improper valuation and insufficiency of court-fee, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. The grounds in clause (b) must be analogous to the grounds in (a).

The court has no jurisdiction to allow withdrawal of suit with liberty to institute a fresh suit unless any of the conditions in clauses (a) and (b) is satisfied. [Order XXIII, Rule 1 (3)].

Order XXIII, Rule 3 is applicable to writ petitions filed under Art. 226 and special leave petitions filed under Art. 136 of the Constitution of India. This is the rule of public policy that filing of fresh suit be barred where the case has been withdrawn without seeking permission to file fresh suit. This is principle contained in Order XXIII, Rule 1(3).

Withdrawal of suit without seeking permission to file a fresh:

The Court may in certain contingencies grant permission to withdraw suit with liberty to file a fresh suit. The ban under Order XXIII, Rule 1(3) to file a fresh suit in case of withdrawal of suit without seeking permission to file a fresh suit is based on rule of public policy.

Rule of public policy is applicable to writ petitions and special leave petitions. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may first agree to permit to withdrawal.

Where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. [Order XXIII, Rule 1 (4)].

Tenant withdrew his objections against the application of warrant of possession without seeking permission to file fresh objections. Tenant cannot be allowed to file second set of objections later on in view of Order XXIII, Rule 1(4), C.P.C.

Ejectment proceedings:

Where application for impleadment was filed by person claiming to be the real tenant was dismissed and two title suits were filed by applicant, one of the suits was dismissed for non-prosecution. Held that Rule 1(4) bars a plaintiff to file a ‘fresh’ suit on the self-same cause of action without any prior leave being obtained was not applicable in the instant case.

Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3) any suit or part of a claim, without the consent of the other plaintiffs. [Order XXIII, Rule 1 (5)].

Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order I, the court shall in considering such application have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. (Order XXIII, Rule 1-A).

Meaning and scope of “subject-matter”:

Rule 1 (3) of Order XXIII, Code of Civil Procedure, empowers the court to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The expression ‘subject-matter’ is not defined in the Civil Procedure Code. It does not mean property.

That expression has a reference to right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as those in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.

Vallabhdas v. Mandanlal Premsukh:

Mere identity of some of the issues in the two suits does not bring about an identity of the subject-matter in the two suits. As observed in Rakhma Bai v. Mahadeo Narayan, the expression “subject-matter” in Order XXIII, Rule 1, C.P.C. means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words, “subject-matter” means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him.

The lordships of the Supreme Court accepted as correct the observations of Wallis, C.J. in Singa Reddi v. Subba Reddi, that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect to the same subject-matter as the first suit.

As said above, where the plaintiff withdraws from a suit or abandons part of claim, without the permission of the court, he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

Hulas Rai v. KB. Bass and Co:

Sub-rule (1) of Rule 1 of Order XXIII, C.RC. confers an unqualified right on the plaintiff to withdraw the suit at any time. Since an appeal is continuation of the suit, the right of the plaintiff to withdraw from the suit inheres even at the appellate stage. The Supreme Court in the case of Hulas Rai v. KB. Bass & Co., observed as follows:

“The language of Order XXIII, Rule 1, sub-rule (1), C.P.C. gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-rule (3) of that rule, the plaintiff becomes liable for such costs as the court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-rule (4) of that rule. There is no provision in the Code of Civil Procedure which requires the court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it.”

The above quoted observation of the Supreme Court rendered the view taken by a single Judge of the High Court at Allahabad in the case of Kedar Nath v. Chandra Kiran nugatory. When the plaintiff withdraws from his suit without seeking permission, contemplated under sub-rule (2), he is precluded from instituting any fresh suit in respect of the subject-matter or the claim made in the suit so withdrawn.

In this context of the law it is difficult to appreciate the argument that any vested right of the defendant under the decree of dismissal of the suit by the trial court, is being taken away or being put in jeopardy. In law, the defendant gets absolute protection as the plaintiff will not be able to file a fresh suit relating to the same subject-matter or the same claim.

A contrary view was, however, taken in a subsequent case by a single Judge of the same High Court, viz., in Kanhaiya v. Mst. Dhaneshwar * and it was held that a plaintiff-appellant has no right under Order XXIII, Rule 1 (1), C.P.C. to withdraw a suit when rights have accrued to the respondents under the decree.

This view found support from the observation of the Supreme Court in the case of Inamatio Mallapa Basappa v. Desai Basavaraja Avvappa. Dealing with the question of the right of the petitioner to withdraw or abandon a part of his claim once an election petition is presented to the Election Commissioner, the Supreme Court laid down that there was no power in the Election Commission to allow a petitioner to withdraw or abandon a part of his claim either by having resort to the provisions of Order XXIII, Rule 1, C.P.C. or otherwise as such a withdrawal or abandonment would have the effect of depriving the returned candidate or any other party of the right of recrimination which had accrued to him under the Act.

In Kedar Nath v. Chandra Kiran, it was held that Order XXIII, Rule 1 (1) does not give an absolute right to the plaintiff to withdraw the suit at the stage of second appeal and that the- matter of withdrawal of the suit under the aforesaid provisions of the Code lay within the discretion of the court.

The case was cited with approval in the case of Vidyadhar Dubey v. Har Charan. The observation of the single Judge in Kamta v. Gaya Prasad, that the view taken in Kedar Nath’s case has been rendered nugatory due to the law laid down by the Supreme Court in the case of Mls. Hulas Rai v. KB. Bass & Co. does not appear to be justified. The case of Mis. Hulas Rai has nothing to do with the right of an appellant to withdraw the suit at appellate stage.

A suit cannot be withdrawn under Order XXIII, Rule 1, C.P.C. even where no permission is sought for filing a suit in case some right has accrued to the defendant at the time the withdrawal is sought for. The facts of each case would have to be examined to find out whether any right has accrued to the defendant.

It is natural that when once a suit is withdrawn by the plaintiff it automatically follows that whatever benefits that were initially gained by the plaintiff by way of interim orders of the court, would naturally vanish and cease to exist. The resultant effect is that the interim order becomes non est.

Therefore, the party would not be entitled to continue with the benefits once the suit is withdrawn by him. Though Order XXIII, Rule 1 does not specifically contemplate a direction to the parties to restore the amenities which accrued to such party by virtue of an interim order, yet it is to be examined by the court while permitting the party to withdraw the suit filed by him as to the advantage and disadvantage, a party is placed by permitting such party to withdraw the suit.

Limitation:

The fact that a suit is withdrawn does not entitle the plaintiff in a fresh suit to any deduction of time during which the former suit had been pending.

The appellate court has the same power to allow withdrawal of a suit with or without liberty as the trial court has. The proper procedure is to set aside the decree of the trial court and then grant permission to withdraw the suit.

The consent decree created and/or continued the relationship of landlord and tenant between parties. If the tenants were entitled to the protection of S. 5 of the Assam Non-agricultural Urban Areas Tenancy Act, 1955, they are entitled to avail of this protection in court of law.

Such a question cannot be decided in execution proceedings. The compromise decree did not contemplate ejectment of defendants-tenants from suit building in execution of compromise decree. It provided that they would be ejected by taking an appropriate proceeding, in accordance with law.

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 when 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, 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 has 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 the rule. (Order XXIII, Rule 3).

Order XXIII, Rule 3, C.P.C., provides for two things: Firstly, it enjoins the court to be satisfied that a suit has been adjusted wholly or in part for a lawful compromise. Then after it is so satisfied, it has to order that such agreement, compromise or satisfaction be recorded and then it has to pass a decree in accordance therewith, so far as it relates to the suit.

The words “so far as it relates to the suit” clearly contemplate that though a court may record a compromise but when it comes to the passing of a decree, the decree must be confined only to what relates to the suit. In other words, matters extraneous to the suit are not to be incorporated in the operative part of a decree. It should be confined to the actual subject-matter of the then existing litigation.

As regards execution of compromise decree to the extent the terms of any compromise fall outside the limits of the suit, they are not to be incorporated in the decree and even if they are so incorporated on account of the compromise as a whole having been made a part of the decree, the decree will remain executable only to the extent it is within the limits of the suit and no more.

The rule does not confer any discretion to the court. When it is established that a suit has been adjusted either wholly or in part by a lawful compromise, it is the duty of the court to record it and pass a decree in accordance therewith except that the court has an inherent power not to allow the proceedings to be used to work a substantial injustice. But if the agreement or compromise is unlawful as where it is opposed to public policy, the court has no jurisdiction to pass a decree on the compromise even though both parties consent thereto.

It is incumbent on the court to pass a decree in accordance with the agreement or compromise, only if the agreement or compromise is lawful; in other words, it is enforceable in law. One test may be applied to determine whether the agreement or compromise is lawful: were the parties competent to enter into the full agreement or compromise in order to achieve the purpose they had in view?

Under Order XXIII, Rule 3, C.P.C. once a plaintiff files an application withdrawing a suit, the suit stands withdrawn, and becomes effective as soon as it is withdrawn. In the case of Smt Raisa Sultana Begam v. Abdul Qadir, a Division Bench of the Allahabad High Court observed as follows: “Since withdrawing a suit is a unilateral act to be done by the plaintiff requires no permission or order of the High Court and is not subject to any condition, it becomes effective as soon as it is done just as a compromise does.

The act is like a point and not continuous like a line having a beginning and an end. Either it is done or not done; there is nothing like its being done incompletely or ineffectively. The consequence of an act of withdrawal is that the plaintiff ceases to be a plaintiff before the court.

The court cannot interfere or re-schedule by way of modification the payment of amounts under consent decree unless both parties give consent thereto.

The amendment as well as substitution made in Order XXIII by C.P.C. (Amendment) Act, 1976 shall not apply to any suit or proceeding pending before the commencement of the Amendment Act, 1976. The effect of amendment is prospective and has no application to pending suits and proceedings.

Govindrajan v. K.N. Srinivasa Chetty:

If a compromise was in fact arrived at though it may be voidable at the instance of one of the parties on the ground of fraud or misrepresentation when the compromise is filed under Order XXIII, Rule 3 with a request to record the same by the opposite party, the Court could not go into the question of fraud or undue influence.

The only ground on which the court could refuse to record the compromise is on the ground that the compromise itself is opposed to public policy. Therefore, the party could not be permitted to question the compromise on the ground of fraud or undue influence.

The compromise could not also be questioned on the ground that the advocate had executed the compromise on behalf of his client as the advocate always has an implied authority to enter into a compromise on behalf of his client unless there is written prohibition or limitation.

In a suit for eviction by the landlord, the parties entered into a compromise on the basis of which a decree was passed. Under clause 1 of the compromise the tenant had agreed that the landlord’s suit for ejectment should be decreed with a condition that the decree shall not be executed for a period of 17 months and if he failed to vacate the premises by that time it would be open to the landlord to execute the decree.

Under clause 6 of the compromise both the parties agreed that if the petitioner failed to vacate the premises he will be liable to pay rent at the rate of Rs. 50 per mensem instead of Rs. 28. The tenant’s contention was that the landlord’s agreement to allow the tenant to remain in possession of the disputed premises at enhanced rent indicated that a fresh tenancy was created between the parties under clause 6 of the compromise as a result of which the tenant could not be ejected.

It was held by the High Court at Allahabad that while construing the terms of the compromise the intention of the parties had to be ascertained and for the purpose it was necessary that the compromise as a whole had to be considered. It was not permissible to read clause 6 in isolation of clause 1. On a reading of both the clauses it was clear that the tenant agreed that a decree for ejectment be passed against him.

The intention of the parties appeared to be that in case the tenant failed to vacate the premises within 17 months, he would be liable to pay damages for use and occupation of the same. There was no question of creating a fresh tenancy. It was not permissible to interpret a document in a manner as to render one of the clauses nugatory.

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, the compromise must be in writing and signed by the parties and there must be a complete agreement between them. To constitute an adjustment, the 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 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.

Contrary to Law:

The compromise in order to be acceptable should not go against the provisions of law. A compromise against the provisions of the U.P. Zamindari Abolition and Land Reforms Act could not be deemed lawful just on the basis of its form and presentation.

Order was passed on concession made by counsel for State that State would contrary to statute. Supreme Court recalled the order passed on such concession.

Authorised Representative or Counsel:

The words in writing and signed by the parties inserted in Order XXIII, Rule 3, C.RC. by the Civil Procedure Code (Amendment) Act, 1976, necessarily mean and include duly authorised representative and counsel. Thus a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject-matter of the suit.

A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment.

After the amendment of 1976, a consent decree is executable in terms thereof even if it comprehends matters falling outside the subject-matter of the suit, but concerning the parties.

Compromise decree a contract:

It is well-settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties, which derives sanctity by the Court super-adding the seal to the contract. But all the same the consent terms retain all the elements of a contract to which the Court’s imprimatur is affixed to give the sanctity of an executable court order.

The Court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. But, if the law vests exclusively jurisdiction in the Court to adjudicate on any matter, e.g. fixation of standard rent, the Court will not add its seal to the consent terms by which the parties have determined the standard rent unless it has applied its mind to the question and has satisfied itself that the rent proposed by consent is just and reasonable.

In such a case it is the independent satisfaction of the Court which changes the character of the document from a mere contract to a court’s adjudication which will estop the tenant from contending otherwise in any subsequent proceedings and operates res judicata.

If the standard rent is fixed solely on the basis of agreement between the parties, such a decree in invitum will not preclude the tenant from contending in any subsequent proceeding that the rent is excessive and “require the Court to fix the standard rent. Therefore, the character of the consent decree will depend on the nature of the dispute resolved and the part played by the Court while super-adding its seal to it.

Challenge to compromise—[Order XXIII, Rule 3 or Appeal under S. 96(1)]:

A party challenging a compromise can file a petition under proviso to Rule 3 of Order XXIII, or an appeal under S. 96 (1) of the Code, in which he can now question the validity of the compromise in view of Rule 1A of Order XLIII of the Code. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful.

In the instant case the plaintiff challenged the order recording compromise on the ground that his counsel in collusion with the defendant of the said suit had played a fraud on him by filing a fabricated petition of compromise although no compromise had been effected between him and the defendant.

Further, details of fraud were mentioned in the said petition and it was stated that the alleged compromise itself was void, illegal and against the requirement of Order XXIII, Rule 3. Therefore, the entertaining of the application filed on behalf of the plaintiff and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise, by the trial court was proper. Since the material produced on the record showed that the compromise was not lawful within the meaning of Rule 3, the order recording compromise could be recalled.

An admission by the tenant about the existence of a statutory ground, expressly or impliedly, will be sufficient and there need not be any evidence before the Court on the merits of the grounds before the compromise order is passed. If there is an admission of the tenant it will not be open to him to challenge its correctness as the admission made in judicial proceedings are absolutely binding on the parties. At any rate the decree cannot be called a nullity to enable the executing court to go behind it.

Compromise decree—A Contract:

A decree passed on the basis of compromise is essentially a contract between the parties. The court is not to fix its seal to the compromise unless the terms are consistent with the relevant law.

The compromise decree between the parties provided that the defendants would be liable to be evicted from suit property after expiry of ten years by appropriate action in court of law. The plaintiffs cannot eject the defendants by applying for execution of the compromise decree. The defendants can be ejected by plaintiffs only by filing a suit for ejectment or in any other manner as, may be permissible by law.

Where the compromise decree created relationship of landlord and tenant and provided that tenants would be liable to be ejected by taking appropriate action in a court of law. The execution court cannot decide the question of protection of tenant under Rent Control Act. Ejectment of tenant cannot be made by execution proceedings and it can only be made by filing fresh suit.

Instructions to Counsel:

The statements which were recorded by the court and which were duly signed by the parties and their counsel constitute a written instrument of compromise, as contemplated by Order XXIII, Rule 3, C.P.C. In such a case, the party cannot take up the plea that no proper instructions had been given by him to his counsel for making the statement in court and he also did not understand the implication of the statement recorded by the court when the statement was recorded in the court proceedings in the presence of his counsel which he signed and which were also signed by his counsel.

Implied authority of counsel in compromise of suit:

Where in suit for recovery of possession, statement was made by counsel for defendant expressing desire to enter into understanding with plaintiff. It was alleged by defendant that her counsel had acted without instructions, however, it was indicated by material on record that counsel for defendant had acted on behalf of his client, on instructions and in their best interest.

Authority of counsel was not shown to have been countermanded by defendant. The allegation by defendant that the counsel had acted without instructions was given up at later stage. Held, that counsel for defendant could be said to have authority to enter into compromise.

Validity of compromise in case of settlement of debt due to Bank:

Where the debt involved more than 10 lacs rupees, a circular issued by bank providing that Managing Committee would be authority for approving recommendation but the Chairman of Managing Committee had approved the recommendation and it was alleged that no meeting of Committee was held. Subsequently, the proposal put forth by debtor-company was disapproved by the Managing Committee. Held that the parties cannot be held to have entered into valid compromise.

Efficacy of order passed on compromise:

Where terms of compromise became part of order of Court, the Court should strictly enforce the terms. Viewing such a breach of terms of compromise as a matter of mere contract between parties and disregarding, it will have disastrous effect on the rule of law and it will certainly become a casualty in the process—a costly consequence to be jealously averred by all and at any rate by the High Courts in States in the country.

Advocate not authorised by party as no vakalatnama was signed in his favour and party has not signed out signed the compromise. Supreme Court set aside the order disposing writ petition on basis of such compromise with a cost of Rs. 5,000.

Bar to suit:

No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. (Order XXXIII, Rule 3A).

No agreement or compromise to be entered in a representative suit without leave of court:

No agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the court so recorded shall be void.

Before granting such leave the court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

Explanation:

In this rule, “representative suit” means—(a) suit under S. 91 or S. 92, (b) a suit under Rule 8 of Order I, (c) a suit in which the manager of an undivided Hindu family sues or issued as representing the other members of the family, and (d) any other suit in which the decree passed may, by virtue of the provisions of the Code or of any other law for the time being in force, bind any person who is not named as party to the suit. (Order XXIII, Rule 3B).

Proceedings in execution of decrees or orders are not affected by the rules relating to withdrawal and adjustment of suits mentioned above. (Order XXIII, Rule 4).

The order of the High Court was challenged in Special Leave Petition on the ground that the order was not consent order in terms of Order XXIV C.P.C. The Supreme Court remitted the case to the High Court for adjudication of this dispute within four months from the date of the receipt of the order of the Supreme Court.

The Parties were allowed to adduce such oral evidence and documentary evidence on that question. After giving the decision on that question, the High Court was directed to communicate the decision to Supreme Court for further orders in those appeals.

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