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Judgment
Sanjay Yadav, J.—As both the petitions emanates from the order dated 25.01.2011 passed by the Madhya Pradesh Co-operative Tribunal in Second Appeal No. 112/2008 and as per order dated 31.01.2013 passed in writ petition No. 10203/2012 for analogous hearing with writ petition No. 17583/2012 with consent of learned counsel for the parties, both the petitions are heard analogously and decided by this common order. Whereas, in writ petition No. 10203/2012 the relief sought is direction to respondent No. 1-Collector to allow the petitioner to deposit the money in its office and to call upon the respondent-Zila Sahkari Krishi Aur-Gramin Vikas-Bank Maryadit, Mandla to settle the dues. In writ petition No. 17583/2012, the petitioner calls in question the order dated 25.01.2011. Thus the former petition is by the beneficiary of the order passed by the Tribunal and the later by the person who suffers an order.
A priori giving rise to the controversy, in nut shell is that, the petitioner in writ petition No. 10203/2012 owned agricultural land bearing Khasra No. 184, admeasuring 13.425 acres situated in village Bhadari, Tehsil Niwas, District Mandla. He being a member of the Zila Sahakari Krishi Aur Gramin Vikas Bank Maryadit, Mandla had availed loan of Rs. 1,10,000/- on 17.10.1987 for purchase of Tractor and Tractor-Trolly. In lieu of security the land in question was mortgaged. The default by him in repaying the loan led the respondent No. 3-Bank to auction the mortgaged land on 11.02.1995 as per section 18 of M.P. Sahakari Bhoomi Vikas Bank Adhiniyam, 1966, The sale in favour of respondent No. 5 (in writ petition No. 10203/2012) was confirmed by order dated 02.06.1995 by the Assistant Registrar, Co-operative Societies, Mandla u/s 21 of 1966 Act.
The petitioner in writ petition No. 10203/2012 preferred an Appeal before the Joint Registrar, Co-operative Societies, Jabalpur against the order of confirmation of sale vide Appeal case No. 77-27/95. The final order passed therein on 24.03.1998 led the aggrieved party to approach the Board of Revenue which remitted the matter to the Joint Registrar.
On remand, recording the contention of the Appellant (petitioner in writ petition No. 10203/2012) that the matter has been resolved with the Bank, Joint Registrar vide his order dated 12.11.2002 dropped the appeal as infructuous. The order is in following terms:
After passing of aforesaid order, strange procedure seems to have been adopted by the petitioner (in writ petition No. 10203/2012) who instead of seeking recalling of the order dated 12.11.2002 or filing an appeal there against before the Appellate/Revisional Authority, he represented to the Minister, Commercial Tax & Commercial Industries and Employment, after five years of passing of order dated 12.11.2002, i.e., in January 2007 and on the basis of a note on the application by the Minister that The note evoked a response by the Joint Registrar, Co-operative Societies, Jabalpur on 18.01.2007 in the following terms:
That, despite of above communication and without recording any reasons and without setting aside the order passed on 12.11.2002, the Joint Registrar reopened the Appeal. The Joint Registrar, Co-operative Societies then went on to pass final order on 30.04.2008 in the following terms:
Being aggrieved by the order passed by Joint Registrar, Co-operative Societies, the petitioner in writ petition No. 17583/2012 preferred a Second Appeal before the M.P. Co-operative Tribunal on the ground that contrary to his instructions the counsel has settled the matter. The Tribunal though framed the following two issues, viz.:
(i) Whether the Joint Registrar could pass the impugned order in spite of the fact that the appeal was not pressed and withdrawn?
(ii) Whether the Joint Registrar was competent to hear a matter in which sale proceedings were absolute u/s 28(4) of LDB Act, Act?
However, instead of answering the issues, the Tribunal went on to decide the second appeal on the basis that the Appellant (petitioner in writ petition No. 17583/2012) having agreed to settle the claim and had led to passing of consent order. The Tribunal discarded the plea that the consent by the counsel is not binding on the parties.
The Tribunal relied upon paragraph 4 of the written submission by the petitioner (in writ petition No. 17583/2012) before Joint Registrar.
Close reading of the statement quoted above would reveal that there was no compromise amongst the parties but a conditional concession by the Advocate representating the party confining to the terms that in case a lump sum is paid with 5% commission as per rule, along with interest and damages, the matter could be settled.
The concession being not in unequivocal terms and without the party endorsing the same, will not in the considered opinion of this Court, binds the parties as would have attracted the bar created vide sub-section (3) of Section 96 of the Code of Civil Procedure, 1908 which prompted the Tribunal not to dwell on merit.
In Sri Swami Krishnanand Govindanand Vs. M.D. Oswal Hosiery (Registered), it has been held by the Supreme Court that:
The learned counsel next contended that the statement of the learned counsel for the respondent should be treated as a compromise as the Court granted five years'' time to the respondent for vacating the suit premises. In our view, this contention has to be rejected. The compromise like a contract postulates consensus between two parties. A statement of a counsel conceding the grounds of eviction and seeking some time for the respondent to vacate the premises, cannot be termed a compromise.
(emphasis supplied)
In Ratanlal Saligram and Another Vs. Nathulal Pankarji Namdeo, it has been held that:
it is urged by Shri Bajpai that the plaintiff''s first appeal was competent as it was against a consent decree. In my opinion, when a suit is decided on special oath, oath having been administered in pursuance of an agreement of the parties, the decree passed on such evidence cannot be said to be a consent decree although such evidence is conclusive. The first appeal was therefore, competent.
(emphasis supplied)
There is another aspect of the matter. The Joint Registrar who was dwelling upon the Appeal, without recalling the order passed on 12.11.2002, had no jurisdiction to have tried the appeal on merit on the basis of an application and contrary to the communication dated 18.01.2007.
The question then is when the Appellate Authority i.e. Joint Registrar, Co-operative Societies was functus officio was it within his jurisdiction to have recorded the alleged compromise and pass an order on 30.05.2008. The provisions contained under sub-section (3) of Section 96 of the Code of Civil Procedure, 1908 is attracted only when it is within the competence of the Court or the quasi judicial authority as in the present case to record a compromise.
Furthermore, Rule 3 of Order 23 of the CPC requires that 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 or signed by the parties, or where 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.
No material having been commended at indicating that the appellant (in writ petition No. 17583/2012) had compromised in writing, incumbent it was upon the Tribunal to have dwelt upon these aspect rather than dispose of the Second Appeal by order dated 25.01.2011 which make it susceptible to a judicial review.
In these given facts, this Court is of considered opinion that the Second Appeal deserves reconsideration on merit by the Tribunal.
Consequently, while setting aside the order dated 25.01.2011 passed by the Tribunal, the matter is remitted for a decision afresh on merit on the issues duly framed by the Tribunal. The appeal be decided within three months from the date of communication of this order. The Tribunal in course of appreciation of various aspects on merit shall dwell upon the same on the basis of cogent material on record without being influenced by the observations in this order.
The parties are directed to maintain status quo in respect of the property in question till final decision in Second Appeal. Both the writ petitions are finally disposed of in above terms. Parties shall bear their respective costs.