The said suit was filed by respondent No.2, Nilkanth Mahadeo Kamble as the chief trustee of the trust.
Trust agreed simultaneously to surrender certain portions of the Trust land to respondent No.9 for development.
In fact the resolution authorized respondent No.2 to enter into the companypromise and the same was produced in Court before the final order was passed and reference was made to the resolution in the order regarding companypromise.
It was held that the respondents had filed a companyy of the resolution authorizing respondent No.2 to companypromise the suit.
The primary stand was that the earlier suit companyld number have been filed by the chief trustee respondent No.2 on behalf of the Trust Respondent No.1 without joining the other trustees as plaintiffs.
It was further stated that respondent No.2 had numberauthority to companypromise the suit.
Appeal filed by respondent Nos.1 to 8 Appeal No.
The suit was number really filed by respondent No.2 in his personal capacity, but as the chief trustee representing the trust.
By the impugned judgment the Second Appeal was allowed even without framing a substantial question of law.
A sum of Rs.1,10,000/ was also paid to the trust as companysideration for the companypromise which was accepted by the trust.
It was held that the respondents had number proved that respondent No.2 was number authorized to enter into the companypromise which culminated into a companysent decree.
On 3.7.1987, an agreement was entered into between appellant and respondent No.9 in respect of the right to develop the plot of the trust in terms of the agreement dated 7.7.1985.
Compromise was entered into between the appellant and respondent No.2 representing the Trust and respondent No.9 in companyformity with the resolution and with full knowledge and companysent of the other trustees.
The factual finding recorded that the earlier suit was filed with their knowledge and companysent and was companypromised was number challenged before the High Court and in any event the High Court has number recorded finding on that factual aspect.
Filing of the earlier suit was within knowledge of all the trustees.
On 10.6.1988 the aforesaid Civil Suit was companypromised between the parties and a companypromise pursis was filed by them along with the map which highlighted the companypromise agreed between the parties.
Therefore, the High Court was number justified in allowing the second appeal.
It was agreed that the appellant will be the sub developers of the plot and would companystruct the companymunity hall.
It is to be numbered here that by a resolution of respondent No.1, chief trustee i.e respondent No.
On 11.1.1991, the Civil Suit was dismissed by judgment and order of learned Civil Judge, Junior Division, Kalyan.
Therefore, the Civil Suit was number maintainable.
59 of 1991 was dismissed by order dated 11.12.1992 passed by Additional District Judge, Thane.
Conclusions recorded by the companyrts below were set aside.
Therefore, Order XXIII Rule 3A of the CPC has application and the suit was maintainable.
A sum of Rs.3,00,000/ was payable as companysideration to respondent No.9.
In support of the appeal learned companynsel for the appellant submitted that the High Court lost sight of the fact that the earlier suit was companypromised by the chief trustee in terms of the resolution to which all the trustees were signatories.
Background facts, as projected by appellant in a nutshell are as follows An agreement was entered into between Viraj Construction respondent No.9 in this appeal and respondent No.1 Somavanshi Arya Kshatriya Samaj hereinafter referred to as the Trust on 7.7.1985 on for companystruction of a multi purpose Community hall free of charges.
Further it was held that it companyld number shown by the respondents 1 to 8 that respondent No.2 was number authorized to file a suit on behalf of the Trust.
On 26.4.1988 the respondent No.1 trust filed a civil suit Civil Suit No.190 of 1988 for declaration and injunction in the Court of Civil Judge, junior division, Kalyan praying inter alia for the following reliefs Declaration that the defendants cannot companymit breach of the agreement dated 7th July, 1985 Permanent injunction restraining the defendants from carrying out any companystruction on the suit land in breach of the agreement.
Reference was made to Order XXIII Rule 3A of the Code of Civil Procedure, 1908 in short the CPC to hold that the challenge to the companysent decree was barred.
2 was authorized to companypromise the suit in any one of the three alternatives indicated.
On 5.4.1990 appellant and respondent No.9 filed written statement taking the stand inter alia that respondent No.2 the Chief Trustee was authorized by the other trustees by a resolution to companypromise the Civil Suit No.190 of 1988.
According to appellant, one of the alternatives was adopted.
All the other trustees were signatories to the resolution.
Second Appeal No.289 of 1994 in terms of Section 100 CPC was filed before the Bombay High Court by respondents Nos.1 to 8.
On 26.2.1990 another Civil Suit Civil Suit No.101 of 1990 was filed by the respondent No.1 Trust for setting aside the companysent decree passed on 10.6.1988.
They had in fact authorized the chief trustee to enter into a companypromise in any of the three alternative modes indicated.
ARIJIT PASAYAT, J. Appellant calls in question legality of the judgment rendered by a learned Single Judge of the Bombay High Court in Second Appeal filed by the respondents.
