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29. Mr. Dutt stated that even though there is no single agreement in writing signed by all the parties or their advocates, yet, from the facts and circumstances a lawful agreement, valid according to the Contract Act. could be spelt out. He said that Chopra had signed the finalised draft. That the Mullicks had continued in their willingness to sell the property outright, though according to clause (1) of annexure 'G', Mr. Dutt's client was given the option to take by long lease instead of by absolute conveyance. That Mr. N.K. Nandi solicitor for the Mullicks had shown willingness to accept even the option for the long lease and that such consent would be seen from the writings of Mr. Nandi on documents relating to preparation of the final conveyance in accordance with the compromise; Mr. Dutt said that copies of these writings would appear from pages 52 and 100 of the annexures to his application. Mr. Dutt stated that the willingness of respondents 3 to 7 to take their deposited money and walk cut of the property could be inferred from the statements contained in their affidavits in these proceedings as well as from a letter dated 17th June 1991 written by their acting advocate, the copy of the letter being annexed at page 133 of the application for compromise. Mr. Dutt also relied upon the other affidavits and papers including the affidavit of GoraChand Mullickdt. 6-8-91.

38. An oral agreement is a valid agreement. It is not unlawful by reason of its being oral. It is not possible to hold that by reason of the amendments to O. 23, R.3 of the Civil P.C. all oral agreements relating to adjustment of suits were rendered either unlawful or unenforceable.

39. In the above Supreme Court case, nothing was said by the Supreme Court as to what would happen at the date of hearing of the second appeal on merits. The Supreme Court did not say that the willingness of the plaintiff to accept a sum of money in lieu of his claim for specific performance would not be considered as a material or relevant factor by the appellate court when hearing the appeal on merits. This is of crucial importance. If a party agrees orally to settle a claim and such agreement is proved by, say, authentic Court records, or other evidence, then no Court can, at the time of trial, overlook such an agreement; the Court cannot overlook such a proven agreement even if the same is oral. Parties are bound by agreement whether those are oral or whether those are in writing. An agreement to compromise suits need not necessarily be in writing, like, say, non-charitable trust instruments relating to immovable property. The effect of the amendment of Order 23, Rule 3 is that when, say an oral agreement is made to compromise a suit, the same has to be proved at the trial of the suit itself; it cannot be proved at an interlocutory stage by way of an application under Order 23, Rule 3 for summary termination of the suit.

46. In my opionion, the determination of disputes as to agreement or compromise which are not written and signed would have to take place only at the trial of suit. It is my further opinion that upon such determination, the Court must act thereupon, as the Court acts upon determination of the existence of any other valid and lawful agreement. In other words, if satisfied at trial that there has been even an oral adjustment settling the suit, or any part of it, the Court shall enforce the same, and shall not decree the suit otherwise than in accordance with such oral agreement or compromise.

48. In my opinion, the proviso to O.23, R. 3 is at least as important as the main section because it preserves the right of the parties to prove at trial oral and other agreements and compromise which cannot be made the subject-matter of a summary application under O. 23, R. 3 for terminating the suit at once.

49. In the instance case there is no adjustment signed by the parties; accordingly an application under O.23, R. 3 must fail. It does not however mean that the agreement which was sought to be recorded in this application mught not conceivably form the basis of decrees in the suits mentioned above. Parties will be free to prove the effect of the signature or writing of Mr. Nandi and all the other attending circumstances, by reason by which, according to the applicant, a valid agreement or compromise has already been reached: