1 (10)AO.1132.2010.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 1132 OF 2010 IN NOTICE OF MOTION NO. 3667 OF 2006 Kishore Devidas Bohade & Ors. ...Appellants Vs. The Municipal Corpn., of Greater Bombay & Ors. ...Respondents Mr. Satyan Vaishnav a/w. Mr. Anil Chavan, Advocates i/b. M/s. N.N.Vaishnawa & Co., for the Appellants Mr. Anuj Narula, Advocate i/b. Jhangiani Narula & Associates for Respondent Nos.2 to 4. Mr. A.D. Yadav, Advocate i/b. Mr. D.R. Shah, Advocate for Respondent Nos.3 to 4. CORAM : SMT. ROSHAN DALVI, J. DATED : 26TH AUGUST, 2011 P.C. : 1. The Appellant has challenged the order of the 3rd Ad hoc District Judge, City Civil Court, Dindoshi, Mumbai dated 10th July 2009 dismissing an application for recording compromise under Order 23 Rule 3 of the C.P.C. The compromise which has to be recorded was signed by the parties. It was, however not tendered to Court. It was not verified by the Court. An order in terms thereof was not passed. However the parties thereafter acted upon the compromise. Certain shops admeasuring 440 sq. ft carpet area in Dindoshi were to be given. There has been a novatio between the parties with regard to the numbers of the shops. 5 shops have been handed over to the Appellant and Respondent Nos.3 and 4. The Appellant contends that these admeasure 378 sq. ft. The Respondents contend that these 2 (10)AO.1132.2010.sxw admeasure 450 sq. ft. 2. The consent terms was signed on 24th April 2001. Shops have been handed over thereafter. The application for recording consent terms to execute the consent terms upon the nonperformance of the consent terms as per its terms came to be filed in 2006. The Respondent No.2 who challenged the application contends that the application was barred by limitation, it having not been taken out within a period of 3 years from the admitted execution of the consent terms. Order 23 Rule 3 of CPC gives a cause of action to the party applying to record the consent terms as a compromise in the suit. Ordinarily under Article 137 of the Limitation Act 1963 an application would be required to be made within 3 years. However since it is an application and not a suit, delay in taking it out may be condoned, if explained. 3. The delay is not explained. In fact Respondents 3 and 4 who are the brothers of the Appellant took out a similar application which has been dismissed. They have filed a separate suit. The learned Judge has considered the judgment cited by the Appellant in the trial Court and concluded that the delay is not explained. The delay has not even be explained to this Court. 4. The consent terms were signed by the parties. The execution is admitted. However they were not tendered to Court and a decree in in terms thereof is not passed. Consequently, the fact that the suit has been adjusted wholly by that agreement or compromise was not proved to the satisfaction of the Court. It is on that ground that the 3 (10)AO.1132.2010.sxw consent terms is rejected. 5. It is argued on behalf of the Appellant that when Respondent No.2 admitted execution of the consent terms as also acted upon the consent terms, the consent terms did not have to be proved and a copy can be considered for recording the compromise. This argument is partly correct. Any fact or document admitted by the parties need not be proved. Hence the fact that the consent terms were executed does not have to be proved. The Appellant may rely upon that admitted document in a pending proceeding or sue on that document in a future proceeding. However for recording the compromise the agreement signed by the parties would have to be verified by the Court. That having not been done the learned Judge was right in not recording the compromise. 6. Consequently, the order is correct and the Appeal is dismissed. (SMT. ROSHAN DALVI, J.)