Mustafa Khan S/O Ibrahim Khan Pathan Vs. Mst. Jainabbi W/O M.A. Hafiz and ors. - Court Judgment

B.U. Wahane, J.

1. Applicant Mustafa Khan Ibrahim Khan Pathan in this revision application challenges the order dated 5th May, 1993 passed by the Civil Judge, Senior Division, Wardha, In Execution Darkhast No. 242 of 1992, rejecting the objection as regards tenability of the execution.

2. The brief facts are as follows:

Ibrahim Khan Shahadatkhan Pathan had instituted Civil Suit No. 367 of 1977 against non-applicants Nos. 1 to 3 for declaration and permanent injunction. According to the plaintiff, he owned and possessed agricultural fields Survey Nos. 10/1 and 10/2, admeasuring 7.74 acres an 0.48 acres respectively, situated at npuza Nalwadi, tahsil and district Wardha. He purchased the above-referred suit fields from one Mst. Mehtabbi widow of Mohd. Sayeed, resident of Wardha, by a registered sale-deed dated 21.11.1967 for a consideration of Rs. 6.000/-. Since then he was in continuous and peaceful possession or the fields in dispute.

3. Defendant No. 1 Mst. Jainabbi wife of M.A. Hafiz and defendant, No. 2 Mst. Sugrabi wife of Shaikh Chhotumiya are real sisters. Defendant No. 3 is the husband of defendant No. 1 Jainabbi. According to the plaintiff, defendants Nos. 1 to 3 threatened to dispossess him from the suit fields, though they have no right and locus standi to interfere with his possession. He specifically stated in para 6 of the plaint that defendant No. 3 on behalf of defendants Nos. 1 and 2 on 13th December 1977 had come to the field and threatened him that he would forcibly dispossess him from the possession of the suit field. The plaintiff apprehended danger at the hands of defendant No. 3, as he was a retired Patwari. On the basis of the above facts, plaintiff Ibrahim Khan sought the declaration that the plaintiff is the owner and in possession of the suit fields and defendants Nos. 1 to 3 have no right to interfere with his possession over the suit fields.

4. During the pendency of the suit, there being a demise of plaintiff Ibrahim Khan, his wife Mst. Munir Begum and 3 others were brought on record as his legal heirs. However, Mst. Munir Begum, being dead, her name was deleted.

5. During the pendency of the suit, plaintiffs Nos. 3 and 4 on one hand and defendants Nos. 1 to 3 on the other, had filed a joint application (Exh. 74) to settle the matter amicably. As the parties, except plaintiff No. 2 Mustafa Khan, had expressed their desire to compromise the matter, the same was placed before the Lok Adalat. Plaintiff Mustafa Khan had filed an objection (Exh. 77) on 26-7-1991 before the Civil Judge, Junior Division, Wardha, stating that he is not ready and willing to enter into the compromise with the defendants. On the basis of the compromise application, the matter was referred to Lok Adalat, vide order dated 4.9.1991. The Lok Adalat was held on 28.9.1991. The plaintiffs Nos. 2 and 3 and defendants Nos. 1 to 3 filed another fresh application (Exh. 78), expressing their desire to compromise the matter. Admittedly no notice was issued to the plaintiff Mustafa Khan by the Lok Adalat. Consequently, plaintiff Mustafa Khan was absent on the date when the matter was placed before the Lok Adalat on 28th September 1991 for compromise. On the basis of the compromise petition (Exh 78) filed by plaintiffs Nos. 2 and 3 on one hand and defendants No's. 1 to 3 on the other, the Members of the Lok Adalat accepted the compromise on 28.9.1991, vide Exh. 80. In pursuance of the compromise, order was passed below Exh. 1 on 28,9.1991 and the decree was drawn on 30.9.1991.

In spite of the compromise decree, the suit of the plaintiff against defendants Nos. 1 to 3 is still pending, because plaintiff Mustafa Khan objected to the compromise as he was not summoned before Lok Adalat and consequently not the party.

6. Non-applicants Nos. 1 to 3 instituted the execution proceedings on 9.11.1992. Plaintiff Mustafa Khan filed his objection (Exh. 8) regarding the tenability of the execution. The application came to be rejected by the learned Civil Judge, Senior Division, Wardha, vide order dated 5th May, 1993, which is impugned in this revision application.

7. The impugned order dated 5th May 1993 is challenged on various grounds:

(i) The learned Executing Court has committed an error in observing that no objection can be entertained at the stage of execution proceedings as the decree which was passed on the compromise petition already being executed. The said decree can be challenged at any stage in the execution proceeding or in collateral proceeding too. This aspect has been dealt with in the case Kiran Singh and Ors. Chaman Paswan and Ors. : [1955]1SCR117 .

(ii) The compromise decree is a nullity because it violates the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure. The compromise petition shall be signed by all the parties. Reliance has been placed on the case Harshadbhai Shah and Anr. v. Rani Kamla Raje and Ors. 1988 Mh.L.J. 874.

(iii) The compromise itself is a nullity as the decree has been passed even though plaintiff No. 1 did not agree and raised the objection to that effect. So also it is in violation of Rule 54 of the Maharashtra State Lok Nyayalaya Rules, 1986.

The members of the Lok Nyayalaya as also the learned trial Court, who passed the decree on the basis of the compromise, failed to apply their mind. In other words, there is total non-application of mind to the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure. If the decree is a nullity, it cannot be enforced in execution. Reliance has been placed on the case Smt. Kaushalya Devi and Ors. v. K L. Bansal : [1969]2SCR1048 .

(v) The decree is passed beyond the pleadings. The non-applicants did not claim to be the owners of the property in suit and as such no decree could have been passed beyond the pleadings. The Suit claim cannot be split up. Thus, the decree is bad in law. Reliance has been placed on the cases Sita Ram v. Radha Bai and Ors. : [1968]1SCR805 ; Dattatrayatu. Rangnath Gopalrao Kawathekar : AIR1971SC2548 ; Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526 and Smt. Rant Bat v. Yadunandan Ram : [1969]3SCR789 .

8. Shri Ghare, the learned Counsel for non-applicants Nos. 1 and 2, in equal force repelled the submissions made by Shri Modak, the learned Counsel for the applicant, giving the chequered history of the parties. It is specifically contended by the learned Counsel that the compromise decree is required to be set aside by the proper forum i.e. by way of appeal. Reliance has been placed on the case Sailendra Nath Roy Chowdhury. Md. Alim and Anr. : AIR1983Cal180 . He contended that the revision application does not lie.

Shri Ghare also referred to the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure and submitted that the parties can enter into the compromise and such a compromise is not void ab initio. In spite of the opposition, if the compromise decree is passed, it will not be a lack of jurisdiction to invoke the provision, but it will be at the most amount to erroneous exercise of jurisdiction. Wrong or erroneous jurisdiction will not amount to 'lack of jurisdiction'. The finding or a decree on the basis of compromise may have been rightly or wrongly passed, but it cannot be said to be a lack of jurisdiction. Therefore, the Executing Court cannot go behind the decree. Reliance has been placed on the following citations:

(i) paras 8 onwards, Dr. Madhukar frimbak Gore v. Vasant Ramkrishna Kolhatkar : AIR1983Bom277 . (ii) Hiralal Pami v. Sri Kali Nath : [1962]2SCR747 . (iii) under Dass v. Ram Parkas : [1977]3SCR60 . (iv) Ambalal Chunthabhai Patel and Anr. v. Somabhai Bakarbhai Patel and Anr. : AIR1944Bom46 .

Shri Ghare, the learned Counsel for the non-applicants Nos. 1 and 2, further submitted that, as stated above, the instant application is not maintainable. The applicant had two ways to challenge the order impugned: firstly, to challenge the decree and secondly, to file a suit against non-applicants Nos. 4 and 5. Reference was made to the provisions of Order XLIII, Rules l(a) and 2 of the Code of Civil Procedure. Further, it is stated that the applicant cannot challenge the decree 'because his suit is still pending and, therefore, the only way is to challenge the decree under Order XLIII, Rule 2 of the Code of Civil Procedure. It is further submitted that the compromise between some of the plaintiffs and the defendants is not invalid if the interests are separate. In other words, it is not necessary that all the plaintiffs and the defendants are required to be parties to the compromise or the decree. Reliance has been placed on the cases reported in-

(i) Placitum (f) and (g), Rama Shankar v. Addl. District Judge, Basti and Ors. AIR 1983 All. 152. (ii) Placitum (j), Smt. Sabitri Thakurain v. Mrs. F.A. Savi : AIR1933Pat306 . (iii) Patel Chaturbhai Nanabhai v. Patel Mohanbhai Nanabhai and Anr. : AIR1972Guj217 , (Para 33).

9. Considering the submissions of the learned Counsel for the parties, the first point to be determined is whether the invalidity of the decree or the question of jurisdiction can be raised at the stage of execution of the decree.

Shri Modak, the learned Counsel for the applicant, submitted that the question of jurisdiction as well as the nullity of decree can be challenged at any stage. He placed reliance on the case of Kiran Singh and Ors. v. Chaman Paswan and Ors. : [1955]1SCR117 . Their Lordships of the Supreme Court have held-

It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.

The Apex Court in the case of Sushil Kumar Mehta v. Govind Ram Bohra : (1990)1SCC193 considered the case of Kiran Singh v. Chaman Paswan (cited supra) and observed in para 12 as follows:

This Court has held that it is a well established principle that a decree passed by a Court without jurisdiction is a nullity and the plea can be set up whenever and wherever the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings.

Further, Their Lordships in the above case observed in para 26 as follows:

Thus, it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject-matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a Court is a nullity and is non est. Its validity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in Collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party.

It is, thus, clear from the law laid down by the Apex Court that a decree can be challenged at the stage of execution or in collateral proceedings if the decree is passed by a Court without jurisdiction or lack of inherent jurisdiction, as such decree is a nullity and is non est.

10. The learned Counsel for the parties referred to the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure. Shri Modak, learned Counsel for the applicant, submitted that the alleged compromise between plaintiffs Nos. 3 and 4 on one hand and the defendants Nos. 1 to 3 on the other, is invalid because the applicant/plaintiff No. 2 opposed the compromise. The applicant was not noticed to remain present on the date of Lok Adalat. He is not a signatory to the compromise. The defendants Nos. 1 to 3 did not claim the ownership in the suit property. There is, therefore, no compliance of Order XXIII, Rule 3 of the Code of Civil Procedure. Besides this, there is a violation of Rule 54 of the Maharashtra State Lok Nyayalaya Rules, 1986. The trial Court failed to apply its mind I.e. total non-application of mind to Order XXIII, Rule 3 of the Code of Civil Procedure and Rule 54 of the Maharashtra State Lok Nyayalaya Rules, 1986.

As the learned Counsel for the parties relied on the provisions of Order XXIII Rule 3 of the Code of Civil Procedure, it needs to be reproduced:

3. 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 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 this rule.

11. Keeping in view the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure, Shri Modak, the learned Counsel for the applicant, submits that the provisions provide that the agreement or compromise must be in writing and signed by the parties. In the instant case, the applicant has raised the objection in writing, objecting to the compromise. The learned trial Court has not considered the objection raised by the applicant. Thus, there is total non-application of mind.

Rule 54 of the Maharashtra State Lok Nyayalaya Rules, 1986, reads as under -

54. Refusal to accept compromise .-If any party or both the parties while handing over the compromise memo to the concerned Judicial Officer refuses to accept the compromise then the Judicial Officer shall record the same on the compromise memo and arrange to file the same along with the original case papers and immediately inform the concerned panel of the Lok Nyayalaya accordingly. No decree shall be passed in such a case.

This rule makes it clear that in ease either of the parties refuses to accept the compromise, the Judicial Officer has to record the same on the compromise memo and inform the concerned panel Or the Lok Nyayalaya accordingly. It means that if there is a refusal or objection raised by any of the parties to the compromise, no decree shall be passed in such a case.

In the instant case, admittedly the applicant has raised the objection to the compromise. In spite of this, the concerned panel of the Lok Nyayalaya allowed the compromise. It is, thus clear, that the members of the panel have not applied their mind and the decree passed is contrary to Rule 54 of the Maharashtra State Lok Nyayalaya Rules, 1986.

The Division Bench of this Court in the case of Harshadbhai Shah and Anr. v. Ram Kamala Raje and Ors. 1988 Mh.L.J. 874 considered the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure and held that in view of the provisions of Order XIII, Rule 3, compromise petition must be signed by all the parties. The compromise petition cannot be acted upon unless and until it is signed by all the parties : [1988]2SCR401 relied on). Shri Modak submitted that in view of the non-observance of the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure and Rule 54 of the Maharashtra State Lok Nyayalaya Rules, 1986, the decree is a nullity and, therefore, cannot be enforced in execution. Reliance has been placed on the case of Smt. Kaushalya Devi and Ors. v. K L. Bansal : [1969]2SCR1048 . In para 5, Their Lordships observed as follows:

This High Court, on revision, held that the decree was a nullity as the Order passed on the basis of the compromise did not indicate that any of the statutory grounds mentioned in Section 13 of the Act existed. In Bahadur Singh's case, Civil Appeals Nos. 2464 and 2468 of 1.966, D/- 16.10.1968 : (reported in (1969) 1 SCWR 51) this Court held that the decree passed on the basis of an award was in contravention of Section 13(1) of the Act because the Court had passed the decree in terms of the award without satisfying itself that the ground of eviction existed. Bachawat, J., speaking for the Court, observed that 'on the plain wording of Section 13(1) the Court was forbidden to pass the decree. The decree is a nullity and cannot be enforced in execution.' This Court, accordingly, declared inter alia that 'the decree in so far as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed.

12. Shri Modak, the learned Counsel for the applicant, submitted that the decree impugned is a nullity as the trial Court has committed an error in passing the decree, determining an issue not arising out of the pleadings of the parties. Admittedly, defendants Nos. 1 to 3 did not claim ownership and as such they were not entitled to a decree. In spite of this, by passing a decree on the basis of the compromise the land from the suit fields has been given to defendants Nos. 1 to 3. ft means, the decree is beyond the pleadings. Reliance has been placed on the case of Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanastus and Ors. AIR 1954 SC 526. Placitum (k). There Lordships observed-

To decide against a party on matters which do not come within the issues oil which the parties went to trial clearly amounts to an error apparent on the face of the record, it is futile to speculate as to the effect these matters had on the minds of the judges in comparison with the 'effect of the other points.

In the case of Sita Ram v. Radha Bai and Ors. : [1968]1SCR805 their Lordships also held that the trial Court should not determine an issue not arising out of the pleadings of the parties.

By and large, the facts are identical of the case of Smt. Rani Bai v. Yadunandan Ram and Anr. : [1969]3SCR789 . In that case, a suit for declaration of right and possession was filed by A joining B as co-plaintiff. B compromised it with C applying for withdrawal of suit. Their Lordships held that the Court cannot dismiss the suit of A on the basis of the application.

In the case in hand, the co-plaintiffs of the applicant entered into a compromise with the defendants Nos. 1 to 3 and even the share of the applicant has been given to the defendants, though they did not claim any ownership In the suit property. In the instant case, the plaintiffs were two brothers and one sister. Declaration and possession of an area admeasuring 8.22 acres of Survey Nos. 10/1 and 10/2 was claimed. According to the Mohammedan Law, each brother will have 2/5th share while the sister will have l/5th share. One brother and one sister, who entered into the compromise, at. the most, can compromise the matter in respect of their share, which comes to 3/5th, approximately 4.93 acres. Thus, applicant Mustafa Khan was entitled to a share of 3.28 acres. However, in accordance with the compromise petition, 5.42 acres land has been taken by plaintiffs Nos. 3 and 4 the brother and sister and the defendants, out of the. land of 8.22 acres. It is, thus, clear that the decree is passed even for the share of the applicant. In view of the observations made by Their Lordships in the case of Smt. Rani Bai v. Yadimandan Ram (cited supra), no decree can be passed in respect of the land which belongs to the adult party.

13. Shri Sharma, the learned Counsel for the non-applicants Nos. 4 and 5, in support of the submissions made by Shri Modak, the learned Counsel for the applicant, contended that the learned trial Court while passing the decree ought to have considered the principles of Mohammedan Law. In the compromise, share from the suit property has been given to the strangers. In a compromise and particularly while determining the shares, division must be between the co-sharers. By the compromise decree, property has been passed to the stranger though not claimed. The illegality, thus. committed by the panel of the Lok Nyayalaya as also by the learned trial Court, is not curable. The decree is contrary to the provisions of Order XIII, Rule 3 of the Code of Civil Procedure and Rules 53 and 54 of the Maharashtra State Lok Nyayalaya Rules, 1986.

14. Shri Ghare, the learned Counsel for defendants Nos. 1 to 3, strenuously argued that the present applicant was aware of the compromise petition as he has filed the reply before the trial Court, opposing the compromise. The order-sheet dated 4th September 1991 indicates that the trial Court directed to put the case before the Lok Nyayalaya including compromise petition and reply of the applicant objecting to compromise. Apparently, non-applicants Nos, 4 and 5 have not challenged the compromise decree. The only recourse available for the applicant was to challenge the decree and secondly to file a civil suit against non-applicants Nos. 4 and 5 the co-plaintiffs. Appeal is provided under Order XLIII, Rule 1-A(2) of the Code of Civil Procedure, The learned Counsel further submitted that the decree passed by the trial Court on the basis of the compromise between some plaintiffs and the defendants is not illegal in view of the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure. The provisions are very clear. Some plaintiffs and some defendants can enter into an agreement and thereby can obtain the compromise decree. Therefore, the only remedy available is by way of an appeal. Reliance has been placed on the case of Sailendra Nath Roy Chowdhury v. Md. Alim and Anr. : AIR1983Cal180 . His Lordship has observed that the compromise decree challenged invoking Section 151 on the ground that it was directive as all the parties did not sign the compromise or the terms of compromise were vague or uncertain, and the petition invoking inherent powers under Section 151 is not maintainable and further remedy is to prefer an appeal.

Reliance has been placed on the case of Smt Sabitri Thakurain v. Mrs. K.A. Savi and Ors. : AIR1933Pat306 . Placitum (z-23)). Their Lordships have observed-

It is quite open to a plaintiff to compromise his suit with some of the defendants only, leaving the others altogether alone, or proceeding with the suit against them.

Further reliance has been placed on the case of Rama Shankar v. 3rd Additional District Judge, Basti and Ors. AIR 1983 All 152. (Placitum G). His Lordship observed that under Order XXIII, Rule 3 of the Code of Civil Procedure, compromise between some parties is not illegal and the interests of the parties not joining the compromise severable from those joining it. The compromise is not per se invalid on ground that only some of the parties to the suit were parties to the compromise.

15. In the case of Patel Chaturbhai Nanabhai v. Patel Mohanbhai Nanabhai and Anr. : AIR1972Guj217 . wherein the case of Vishnu Sitaram. Auchat v. Ramchandra Govind Joshi AIR 1932 Bom. 466 has been referred, it is observed-

Under Order 23, Rule 3, the Court has a duty and not a discretion to record a lawful compromise subject possibly to an inherent power of refusal where a substantial injustice would be worked. When the compromise is plainly outside the suit, the Court may refuse to incorporate it in a decree....

Further, in para 34 again, considering Order XXIII, Rule 3 of the Code of Civil Procedure, it is observed-

The expression 'so far as it relates to the suit' has been given a wide interpretation so as to include matters which form a consideration and are thereby intimately connected with the subject-matter and the Court need not confine operative part of the decree only to what is strictly speaking the subject-matter of the suit as seen from the frame of the suit or the reliefs claimed. Besides, even if the trial Court wrongly incorporated in the consent decree even a portion which did not relate to the suit, the question would arise whether such an error was only one in the exercise of the jurisdiction or one which would make the decree a nullity in the true sense. As for the latter class of errors it was pointed out at page 444 that if the Court recording compromise had no jurisdiction for incorporating any part of the compromise into the decree, the decree would be ultra vires and, therefore, void and a nullity, because the Court would lack inherent jurisdiction to entertain the compromise. Therefore, it was held that such an objection of nullity in the context of a consent decree under Order 23, Rule 3 could be urged even before the executing Court if the trial Court lacked inherent jurisdiction over the subject-matter itself to entertain such a compromise as the matter was one on which the Civil Court's jurisdiction was wholly excluded or because it was the Court of limited jurisdiction and it had no jurisdiction over the subject-matter on which it sought to pass a consent decree or because the suit as instituted was inherently incompetent.

16. The principles laid down in the case of Patel Chaturbhai Nanabhai v. Patel Mohanbhai Nanabhai (cited supra) are in toto applicable to the instant case. The learned Trial Court passed the decree incorporating the portion of the property of the applicant which was not claimed at all by the defendants Nos. 1 to 3, which means the compromise is plainly outside the suit i.e. outside the pleadings of the defendants. Thus, injustice is apparently caused to the applicant. The trial Court in fact had no jurisdiction to record the compromise in respect of the property belonging to the applicant. Thus, the decree is ultra vires and, therefore, void and a nullity. The applicant, therefore, rightly raised the objection under Section 47 of the Code of Civil Procedure before the Executing Court.

17. It is apparent from the facts and circumstances of the case that in. the compromise decree even the share of the applicant has been incorporated. Similarly, though the suit is for declaration, restraining non-applicants Nos. 1 to 3 from disturbing the plaintiffs' possession, the suit and the causes cannot be split up by entering into a-compromise between some of the plaintiffs and the defendants. There is no dispute that the compromise is beyond the pleadings and the issues framed in the suit. The applicant is not a party to the compromise petition. On the contrary, he has raised objection to the compromise. Considering the provisions of Order XXIII, Rule 3, of the Code of Civil Procedure, and the provisions of Rules 53 and 54 of the Maharashtra State Lok Nyayalaya Rules 1986, and various pronouncements, discussed above, the decree itself being ultra vires and, therefore, void and a nullity, the applicant has a right under Section 47 of the Code of Civil Procedure to raise an objection or challenge the decree before the Executing Court, as observed by their Lordships of the Supreme Court in the cases of Kiran. Singh v. Chaman Paswan and Sushil Kumar Mehta v. Govind Ram Bohra (cited supra).

18. In the result, the instant civil revision application is allowed. The order passed by the trial Court on 5th May, 1993 in R.D. No. 242 of 1992 is set aside. There shall be no order as to costs.