Case Note & Summary
The case concerned a partition suit filed in 1975 by R. Satyabai, widow of R. Gopal Rao, against the three brothers of her husband, seeking partition of family properties. A compromise decree was passed on July 13, 1978, granting the plaintiff certain properties exclusively and joint interest in others. After the plaintiff's death, her daughter and sole legal representative applied in 1991 for passing a final decree. The defendants objected, contending that through an oral settlement arrived at in 1985, the parties had finally settled the issue of partition, and that a subsequent memo of family arrangement dated July 5, 1992, signed by all parties, superseded the 1985 settlement. The learned District Judge held after enquiry that the 1985 settlement was true and dismissed the application for final decree. On revision by the plaintiff, a Single Judge of the High Court held that Order 23 Rule 3 as amended in 1976 did not recognize oral settlement and hence the 1985 settlement could not be accepted; further, since according to defendants the 1985 settlement was superseded by the 1992 settlement, and the 1992 settlement was not established, the 1985 settlement could not operate as a bar. The defendants appealed to the Supreme Court. The Supreme Court noted that under Section 97(2)(s) of the Civil Procedure Code (Amendment) Act, 1976, the amendment and substitution made in Order XXIII by Section 74 of that Act shall not apply to any suit or proceeding pending before commencement of Section 74. The present suit was instituted in 1975, hence the amended Order 23 Rule 3 did not apply, and there was no legal bar to the defendants putting forward the oral settlement of 1985 as a bar to the application for final decree. The High Court had erred by relying on the amended provision. Accordingly, the Supreme Court allowed the appeal, set aside the impugned judgment of the High Court, and remitted the revision petition (C.R.P. No. 1594 of 1993) to the High Court for reconsideration in accordance with law. The Court clarified that it expressed no opinion on any other issue between the parties and all issues arising in the C.R.P. would remain open for consideration by the High Court. No costs were awarded. The decision turned solely on the applicability of Section 97(2)(s) of the Amendment Act to pending suits.
Headnote
A) Civil Procedure - Amendment Applicability - Section 97(2)(s) of Civil Procedure Code (Amendment) Act, 1976 and Order 23 Rule 3 CPC - In suits pending before commencement of Section 74 of the Amendment Act, amended Order 23 Rule 3 does not apply; oral settlement can be relied upon. The High Court reversed the District Judge on the ground that amended Order 23 Rule 3 does not recognize oral settlement, but Section 97(2)(s) expressly excludes pending suits from the amendment. The Supreme Court held the High Court erred by applying amended Order 23 Rule 3 to a suit instituted in 1975 and remanded C.R.P. No. 1594 of 1993 for reconsideration. Held that there is no legal bar to defendants putting forward the oral settlement of 1985 as a bar to the final decree application.
Issue of Consideration
Whether the High Court erred in applying the amended Order 23 Rule 3 CPC to a suit instituted in 1975, given Section 97(2)(s) of the Civil Procedure Code (Amendment) Act, 1976; and consequently whether the oral settlement of 1985 could bar the application for passing a final decree.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned judgment of the High Court, and remitted the revision petition (C.R.P. No. 1594 of 1993) to the High Court for reconsideration in accordance with law. The Court held that Section 97(2)(s) of the Civil Procedure Code (Amendment) Act, 1976 makes the amendment to Order 23 Rule 3 inapplicable to suits pending before the commencement of Section 74, and the suit was instituted in 1975, so there was no legal bar to relying on the oral settlement of 1985. The Court expressed no opinion on other issues and left all issues open for the High Court. No costs.
Law Points
- Section 97(2)(s) of the Civil Procedure Code (Amendment) Act
- 1976 saves pending suits from the amendment to Order 23 Rule 3 CPC
- oral settlement can be considered in a suit instituted before 1976 if found true on evidence
- High Court revision remanded for reconsideration in accordance with law.
