(Dead) by L.Rs. Vs. Lachhman Singh & Ors.  INSC 678 (22 April 2008)
H.K. SEMA & MARKANDEY KATJU
O R D E R CIVIL APPEAL NO.953 OF 2004 This appeal filed by the plaintiff is
directed against the order dated 05.03.2008 passed by the High Court condoning
the delay of 17 years in filing second appeal. By the impugned order the High
Court admitted the second appeal after condoning the delay of 17 years.
We have heard the learned counsel for the parties.
The facts leading to the filing of the present appeal may be summarily
The plaintiff's suit was for declaration that he is owner of the land in
question and the defendant has fraudulently got a sale deed executed in his
favour. Therefore, the plaintiff prayed for cancellation of the sale deed. The
trial court dismissed the suit.
On appeal being preferred by the plaintiff the same was disposed of in terms
of compromise arrived at between the plaintiff and the defendants. The terms of
the compromise runs as under :
"It is ordered that in view of the statements of the parties, the
appeal of the appellant is accepted and the suit is decreed but if the
Respondents/Defendants Nos.8 to 18 pay a sum of Rs.10,000/- in two
installments, one of Rs.7,000/- on or before 30.10.1985 and second instalment
of Rs.3,000/- on or before 30.5.1986, the appeal shall be deemed to be
dismissed in either event, the parties are left to bear their own costs."
It appears that the defendants failed to deposit the second instalment of
Rs.3,000/- on or before 30.05.1986. An application was filed under Section 147
CPC for extension of time to deposit the second instalment which was rejected
by the trial court. Aggrieved thereby, the defendants filed an application
under Section 115 CPC which was allowed by the High Court by extending the time
enabling the defendants to deposit the second instalment. Against the order of
the High Court the plaintiff filed C.A.No.3422 of 1996 before this Court which
was disposed of on 30th October, 2002. The relevant portion of the order reads
as under :
"It is not disputed that the settlement arrived at between the parties
was made part of the decree of the Court. It was a decree like any other decree
passed by the Civil Court. Once a decree is passed by the Court, it becomes
functus officio to modify the decree. It is only the higher court either to set
aside the decree or to modify the decree.
Since the court, after passing the decrees became functus officio, it also
had no power under Section 148 CPC to extend the time for depositing the money
by modifying the terms of the decree which was passed on settlement between the
parties. If the Court modifies the decree, it varies the terms of the
settlement which is not permissible. In that view of the matter, the High Court
fell in error in extending the time for depositing the second instalment by the
defendants. Consequently, the appeal deserves to be allowed."
In terms of the order referred to above this Court clearly held that the
terms of the compromise had become a decree passed by the civil court and,
therefore, the Court has become functus officio to modify the decree. This
Court was, therefore of the view that the High Court fell in error to extend
the time for depositing the money by modifying the terms of the decree which
was based on settlement between the parties. This Court was further of the view
that if the Court modifies the decree, it varies the terms of the settlement
which is not permissible. On the aforesaid premises this Court set aside the
order of the High Court extending the time for depositing the second
In view of the aforesaid decision of this Court in clear terms it was not
open for the High Court to entertain the second appeal after condoning the
delay of 17 years.
After the decision of this Court dated 30.10.2002 the controversy between
the parties finally came to an end and it was not permissible for the High
Court to entertain the second appeal thereafter.
In the aforesaid view, we are of the view that the High Court fell in error
in entertaining the second appeal by the impugned order. Accordingly, the
impugned order passed by the High Court is set aside. The appeal is allowed. No
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