1 fast18043-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL ST. NO. 18043 OF 2011 ALONGWITH CIVIL APPLICATION NO. 2855 OF 2011 Rekha S. Vijan .. Appellant V/s. Vimaladevi Ramnath Vijan & Anr. .. Respondents ..... Mr. S. D. Patil h/f. Mr. S. R. Saudagar for the appellant. Mr. A. M. Saroagi for the respondent No.1. ..... CORAM : A.S.OKA, J. DATE : JULY 22, 2011. P.C.: Heard the learned counsel appearing for the appellant and the learned counsel appearing for the first respondent. 2. Admit. 3. The learned counsel appearing for the first respondent waives service. Considering the nature of the impugned decree only the first respondent is the real contesting party. Taken up for final hearing by consent. 4. The first respondent original plaintiff filed a suit for 2 fast18043-11 declaration that the defendants (the appellant and the respondent No.2) have no legal right to stay in the suit premises described in prayer clause (a). The second prayer is for perpetual injunction restraining the defendants from occupying, using and possessing the suit premises. The appellant is the second defendant. 5. It appears that the Consent Terms were filed between the first and second respondents. On the basis of the Consent Terms following order was passed by the trial Court. “ORDER Advocate Mr. Gupta for plaintiff present. Advocate Mr. Deboo for defendant No.1 present. Plaintiff due to old age could not remain present. Whoever, defendant No.1 who is son of plaintiff s present. Defendant No.2 is already put exparte as she remained absent inspite of service and she is wife of defendant No. 1. Plaintiff and defendant No.1 have filed Consent Terms taken on record and marked as Exh-3. Both the advocates of defendant No.1 and plaintiff are agree with the consent terms. Accordingly suit stands disposed of in terms of consent terms. Decree be drawn accordingly.” 6. On plain reading of the said order, it appears that there was no decree passed against the present appellant. The learned trial Judge has merely noted that an order has been passed to proceed exparte against the appellant. However, there is no decree passed as against the appellant. 3 fast18043-11 7. It is obvious that the consent decree passed on the basis of the Consent Terms between the first and second respondents will bind only to the first and second respondents and the suit will have to proceed against the appellant. The learned counsel appearing for the first respondent fairly states that as there is no decree passed against the appellant, the suit will have to proceed against the appellant. 8. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and decree dated 25th October, 2010 passed by the 2nd Additional Principal Judge, City Civil Court, Bombay is modified by directing that the suit as against the appellant continues to remain pending. The Trial Court shall proceed with the suit in accordance with law as against the appellant. ii. It is clarified that the consent decree passed is between the first and second respondents and the suit stands disposed of in terms of the consent decree only in so far as first and second respondents are concerned. The appellant shall not be bound by the 4 fast18043-11 said consent decree. iii. Appeal is partly allowed on the above terms with no order as to costs. iv. Civil Application No.2855 of 2011 does not survive and the same is disposed of. (A.S.OKA, J.)