Civil Procedure Rules inapplicable to factual dispute over settlement; application dismissed as issue requires separate pleadings.

[*236] 1979 January 12

(KOURRIS, P.D.C. AND DEMETRIOU, S.D.J.)

IN THE DISTRICT COURT OF PAPHOS

Kyriacos PapaCleovoulou and Another,

Plaintiffs,

v.

Arestis Savva and Others,

Defendants.

(Action No. 814/71).

Civil Procedure - Practice - Dispute whether action settled, whether settlement binding and as to terms thereof - Mode of pursuing - Order 3 and Order 27 rules 1,2 and 3 of the Civil Procedure Rules inapplicable - Order 27 can only be invoked when a point of law is raised by the pleadings.

L. Nicolaides with E. Korakides, for Applicants-Plaintiffs.

E. Komodromos, for Respondent-Defendant 1.

G. Constantinides with A. Pandelides, for Respondent-Defendant 2.

A. Pandelides, for Respondents-Defendants 3 & 4.

DECISION+

The decision of the Court was delivered by:-

KOURRIS, P.D.C.:- By this application[*237] the applicants pray as follows: -

(A) An order of the Court that the notice of the change of advocate dated 15.5.78 filed on behalf of the 3rd defendants that they are parties to the present action be set aside.

(B) An order of the Court that the 3rd defendants he struck out

and/or excluded as parties in the present action because the action was compromised between the plaintiffs and themselves on

30.6.75.

(C) An order of the Court declaring that the 3rd defendants are prevented from re-opening the proceedings because there has been a final settlement between themselves and the plaintiffs and/or it is an abuse of the process of the Court if the defendants No.3 take part in the present action as parties.

(D) Costs.

This application is based on Order 3 rule 1 , Order 27 rules 1, 2

and 3, Order 30 rules 2 (d) (g) and Order 48 rule 2 of the Civil Procedure Rules and on the Rules of the Supreme Court of England. This application was filed on 27.10.78 and it is supported by an

affidavit of the same date sworn by plaintiff No.2 who, being an illiterate, affixed her mark in the presence of the Registrar.

The substance of the affidavit is to the effect that defendants 2, 3 and 4 were represented by Messrs. [*238]

Sofoclis Michaelides and Xanthos Clerides and when the action came on for hearing on 30.6.73 and all the parties were present, the defendants No.3 compromised the action between themselves and the plaintiffs and that the terms of the settlement were as follows:-

(A) By consent order for the transfer and registration in the name of plaintiff No.2 of plot 29 of Sheet Plan 45/59 in the village of Emba.

(b) The plaintiff No.2 to transfer and register Plot 116 of the same Sheet Plan in the names of defendants 1, 2 and 3 as follows:-

The 6/8th share in the name of defendant No.1 and l/8th share in the name of defendant No.2 and 1/8th share in the name of defendant No. 3.

By paragraph 4 she alleged in her affidavit that the said settlement was recorded by the Court.

Before proceeding any further we propose to give a brief history of the proceedings giving rise to the present application.

This action was filed on 13.7.71 and it came on for hearing on 30.6.75. It is in respect of what has taken place on that day and in respect of the record of the Court of the same date that the present proceedings arose. It is pertinent at this stage to state in full the record of the Court:

"30.6.75

For plaintiffs Mr. L. Nicolaides For defendant No.1 Mr. E. Komodromos [*239]

For defendants Nos. 2, 3 and 4 Mr. S. Michaelides, Mr. N. Mavronicolas and Mr. X. derides Plaintiffs present, defendant No.1 present, defendant No.2 present, defendant 3(b) present, defendant No.4. present.

Mr. X. Clerides:- We have reached a settlement. I apply for the settlement to he recorded as provisional and to be finalised within a few days as defendant No.2 wants to consult her children. There will be no costs for today if settlement finalised. What I stated applies to defendant No. 2.

The settlement will be final as from now for defendant No.3. Defendant No.4:- I accept no settlement.

Mr. L. Nicolaides:- I agree with the proposal of Mr. X. derides. Costs of today to be against the defendants Nos. 2 &

4 in case the defendant No.2 does not finalise the settlement or against defendant No.4 if defendant No.2 agrees.”

Mr. X. Clerides:- I agree.

Mr. Komodromos:- I claim my costs against plaintiffs. Court: - Adjourned to 14.5.75 for hearing. Costs of today against defendant No.2 and 4. If defendant No.2 finalises the settlement no costs between plaintiffs and defendant No.2. Plaintiffs to pay defendant’s costs if settlement not finalised.

(Sgd) D. Stylianides P.D.C." [*240]

Pausing here for a moment, it appears that the date when the hearing was adjourned, and appearing to be 14.5.75 it is a wrong date and having perused the file it has become to us evident that the date for which the hearing was adjourned was 14.7.75.

Between 30.6.75 and 14.7.75 the then President of the District Court Paphos was met with an accident and the case was adjourned to 6.11.75 for mention and this is apparent from a letter

addressed by the Registrar to Mr. Xanthos Clerides dated 19.9.75, a copy of which is filed. On 6.11.75 the case was evidently

adjourned to 28.11.75 when the case was adjourned for hearing on 16.1.76. The record was signed by the then President Mr. L. Savvides and it is undated but having perused the file we have reached the conclusion that the date when the case was adjourned for hearing on 16.1.76 should have been 28.11.75.

We propose to set out the record of that date because it was relied on by the applicants:

"For Plaintiff Mr. Korakides

For defendant No.1 no appearance.

(Mr. Korakides undertakes to notify Mr. Komodromos).

For defendants 2, 3, 4 Mr. Mavronicolas for Mr. Clerides.

Mr. Korakides:- Defendant No.1 has already declared that he accepts the settlement. Also the same applies for defendant No.3. The action therefore should be fixed for hearing against defendants 2 & 4.[*241]

Court:- Fixed, for hearing 16.1.76. Costs in cause.

(Sgd) L.G. Savvides

P. District Court".

On 16.1.76 Mr. Mavronicolas who appeared for Mr. Xanthos Clerides applied for leave to withdraw from the action in view of the fact that defendants 2 and 4 have retained another advocate and leave was granted for the withdrawal of Mr. Xanthos Clerides. It was on this date that Mr. A. Pandelides appeared for the first time for defendants 2 and 4 and because of a settlement made with regard to defendants No.3 for which the applicants commented upon it during the hearing of this application. We again propose to state it in full:-

"16.1.1976

For Plaintiffs Mr. L. Nicolaides with Mr. Korakides.

For Defendant 1, Mr. Komodromos.

For Defendants 1 and 4 Mr. Pandelides. In respect of defendant 3, there is a record that she agreed to a settlement.

Court:

Let notes be taken in shorthand.

Mr. Mavronicolas appears for Mr. X. Clerides and applies for leave, on behalf of Mr. Clerides, to withdraw from this action in view of the fact that Defendants 2 and 4 have retained another advocate.[*242]

Court:-

Leave is granted to Mr. Clerides to withdraw.

Mr. Nicolaides:-

Though there was a settlement in this action, by Mr. Clerides that Defendant 2, provisionally accepted the settlement reached between the parties and she only wanted to consult her children, before the settlement finalised, till to-day we had no notice whether Defendant 2, accepted finally the settlement or not.

Mr. Pandelides: -

I wish to inform the Court that Defendant 2, is not prepared to accept any settlement and she contests the claim together with Defendant 4. I also wish to say that Defendants 3 want to consider their position whether they are bound by the settlement made by Mr. Clerides.

Mr. Nicolaides: -

In view of what has been stated by Mr. Pandelides the Order for costs made on 30.6.1975, to remain against both Defendants 2 & 4 as recorded.

All counsel state that in view of the fact that the case is very complicated and it will require at least three days, then the hearing to be adjourned and be fixed for three continuous days. [*243]

Court:-

In view of what has been stated, the hearing is adjourned sine die, to he fixed later. Concerning today’s costs, in view of the fact that no settlement was made by Defendant 2, but only to-day, that she was not prepared to accept the provisional settlement, the Order concerning to-day’s costs will he Order for costs in cause but not against Plaintiff and Defendant 1 in any event.

(Sgd)……………….....

L.G. Savvides, P.D.C.

“(Sgd)....

S. Demetriou, S.D.J."

On 16.1.76 the hearing of the action was adjourned sine-die and on 10.4.76 counsel appearing for the plaintiffs applied to the Court to fix the action for hearing whereupon it was fixed for hearing on 9.11.76. In the meantime counsel for the plaintiffs and counsel for defendant 1 filed an application on 27.10.76 applying that the action should be taken by H.H. Stylianides, P.D.C., because Judge Stylianides dealt with the Action on 30.6.75 and that the terms of the settlement could not be traced in the file, In view of this application the action was adjourned sine-die to be taken by H.H. Stylianides P.D.C.

By an application dated 23.4.77 and filed on 26.4.77 Mr. Pandelides applied that the action be fixed for hearing stating in the same application that the defendants 3(a) and (b) appointed him as their advocate and that they were also [*244] asking for the action to proceed for hearing. This applicatior was dealt with on 31.3.78 when the President directed that this action should be taken by a composition consisting of Judge Demetriou S.D.J. and Judge Fr. Nicolaides, Ag. D.J. directing also to be fixed within the next two months. On the same day, that is on 31.3.78 the action was fixed for mention on 15.5.78. On 15.5.78 Mr. Nicolaides reiterated his position to the effect that the case should be tried by H.H. Stylianides, P.D.C. and that it could not be taken by a different Court and Mr. Komodromos agreed with the declaration of Mr. Nicolaides and Mr. Panayides who was appearing for Mr. Pandelides did not take any stand in the matter because his instructions were to obtain a date for hearing. The Court, in view of the statements of counsel adjourned the action for mention on 26.6.78 in order to give the parties a chance to study the steps to be taken regarding the implementation of the settlement reached.

On the same date, that is, 15.5.78 Mr. Pandelides filed a notice with the Court that defendants 3(a) and (b) appointed him as their counsel.

On 26.6.78 the hearing of the action was adjourned sine-die in order to be fixed for hearing by the new President of the District Court of Paphos who would succeed Judge Savvides who was due to take up duties as a Judge of the Supreme Court.

By an application dated 4.9.78 Mr. Pandelides applied that the action be fixed for hearing and in view of the time the action would take to be tried, be requested that [*245] the action be fixed for hearing for four days. The action was fixed for hearing for four days and particularly on the 7th, 8th, 14th and 15th December 1978 and was also fixed for mention on 10.11.78.

Before the action came on for hearing, the plaintiffs filed the present application on 27.10.78.

This is a short history of the proceedings giving rise to the present application. This application was served on defendants 3(a) and (b) and was opposed by them and it was fixed for hearing on 16.11.78 when it was adjourned for hearing on 7.12.78 to enable applicates to serve the application on defendants 2 and 4 as well. On 16.11.78 Mr. Komodromos appeared for defendant 1 who was also served.

The defendant 3 originally was a certain Annou Stylianou Ioannou of Engomi who died and was substituted by the administrators of the estate who are her husband Doloros Panayides as defendant 3(a) and her daughter Louiza Dolorou Panayide who is defendant 3(b).

The defendants 3(a) and (b) in their opposition in the body of the application alleged that the prayers asked for by the applicants are unknown to the legal system of Cyprus and/or the Court cannot grant the prayer applied for and/or that the Rules on which the application is based they do not provide for the prayer asked for. In the affidavit in support of the opposition sworn by defendant 3(b) it is alleged that no final compromise was reached between defendants 3 and the plaintiffs but there were certain [*246 proposals which did not materialise in a final settlement. Further, she alleged that at the time of the alleged settlement there was a minor among the heirs, that the terms of settlement do not appear on the record of the Court and that the procedure which the plaintiffs adopted for striking out defendants 3(a) and (b) is unknown to the legal system of Cyprus and consequently invalid and it cannot have any legal effect and that the Rules of procedure on which the application is based have no application. Defendant 3(a) in support of the opposition sworn an affidavit alleging that on the day of the alleged compromise he was at Nicosia and that he never gave his consent for any compromise. Further that among the heirs of the original defendant No.3 there is a minor and that the alleged compromise is not in the interests of the minor and therefore void.

Defendants 2 and 4 also opposed the application and defendant No.4 sworn an affidavit stating that the application concerns only the plaintiffs and defendants 3(a) and (b) and that this application does not concern them and that they should not have been made parties.

Mr. Komodromos who is appearing for defendantrespondent 1 supported the application of the plaintiffs in his address to the Court.

The main argument of Mr. Nicolaides is that defendants-respondents No.3 placed themselves out of the jurisdiction of the Court by the settlement and they cannot continue to be parties in the same proceedings. The [*247] proceedings were terminated against defendants 3 and it is an abuse of the process of the Court to continue being parties. Mr. Komodromos who stated that the applicants can succeed in their application supported the argument of Mr. Nicolaides and put it in this way: By the compromise there was an end in the locus standi in the proceedings of defendants No.3 and that the proceedings between the plaintiffs and the defendants No.3 were terminated.

Mr. Nicolaides went on to say that in view of the compromise reached between the plaintiffs and the defendants No.3 resulting in the termination of the proceedings between the plaintiffs and the defendants No.3, the defendants-respondents No.3 cannot re-open the proceedings by instructing another counsel to appear for them and by filing a notice of change of advocate. He argued that since there has been a final settlement the course open to defendants No.3 were to bring an action to set aside the settlement or the record if they deemed it right to do so and they cannot alleged that the settlement is void by their opposition to the present application. He said that the settlement was recorded, that the Court dealt with the question of costs and no order for costs was made against defendant No.3 which indicates that the settlement was final and, he further said that the settlement was pronounced by the Court. He added that counsel appearing for the defendants had authority to settle the case and, even if there was no such authority, then defendants 3 should have taken steps to set aside the settlement and no such steps [*248] were taken by them and consequently the settlement was binding upon them, He went on to say that the record of the Court is unchallenged and therefore defendants 3 have no locus standi in the present proceedings because they did not bring an action to set aside the record of the Court including the settlement.

Both Mr. Nicolaides and Mr. Komodromos relied on the case of Green v. Rozen & Others, (1955) 2 All E.R. 797 and also on Odgers Pleading and Practice, 16th edition 320, 321 to support their argument that the proceedings between plaintiffs and defendants 3 were terminated. Mr. Komodromos also cited to the Court Halsbury's Laws of England, 3rd edition, Vol. 30,para. 668 and para. 763 with regard to the effect of a compromise.

Mr. Nicolaides supported the view that rightly this application is based on Order 27 rules 1,2,3 and Order 3 and he abandoned Order 30 for which there is a reference in this application.

If we understood rightly Mr. Nicolaides he argued that Order 27 corresponds to the English Order 25 and that as the English Order states that when there is a point of Law to be decided by the Courts, not necessarily arising from the pleadings, then the Court should rely on the English Order 25 rule 2 and not on the Cyprus Order 27. Pausing here for a moment, we would like to state that the submission of Mr. Nicolaides on this point is untenable; we cannot disregard the Cyprus Rules of Procedure and rely on the English Rules of Practice.[*249]

With regard to Order 3 Mr. Nicolaides at first said that a notice of change of advocate filed with the Court must be signed by the litigant and not by counsel and since the notice of the change of advocate was signed by the counsel of defendants No.3 it is void and of no effect whatsoever. But, he then said that the notice of the change of advocate was properly made but his point was that since defendant 3 was not a party she could not change advocate. Further, he said that paragraph (c) of the application is a continuation of paragraph (b) and really paragraphs (b) and

(c) form one ground. He went on to invite the Court to rely on its inherent jurisdiction and to find that relying on its inherent jurisdiction can deal with the present application.

Mr. Komodromos who is appearing for defendant 1 said that his client was a party to the settlement and he has an interest in the fate of the application because the decision of the Court on this application will affect his client and that he was rightly joined in the application. Pausing here for a moment, we would like to state that we have nothing to state because there was a Ruling by the Court on this point on

16.11.78 albeit the composition of the Court was different from the composition of the Court which tried this application.

Counsel for respondent 1 in his address contended that the applicants must succeed in their application and relied on the same grounds as counsel for the applicants and in support he referred to Halsbury's Laws of England, 3rd edition, vol. 30, paras. 768 and 763. He also referred [*250] to Odgers Pleading & Practice, 16th edition, pp. 320, 321 and also relied on the case of Green v. Rozen, (1955) 2 All E.R. 797 at p. 801.

In concluding he said that the question is not whether the application can stand on the Civil Procedure Rules on which it is based but whether a defendant who compromised an action can proceed.

Mr. Pandelides invited the Court to dismiss the application against defendants-respondents 2 and 4 because the alleged settlement between defendants-respondents No.3 and the plaintiffs does not in any way affect them and they should not have been joined in this application. He also raised the point that defendant 1 - respondent 1 should not have been heard by the Court and whatever Mr. Komodromos said must be disregarded.

We agree with Mr. Pandelides that respondents 2 and 4 are not concerned with the present application and they should not have been joined as parties because the alleged compromise between plaintiffs and respondents No.3 does not concern them and does not affect them and we dismiss the application against them with costs for one advocate.

With regard to the second point we are not in agreement with Mr. Pandelides because when he raised this point on

16.11.78 before the Court which its composition was different from the composition of the Court who heard the application, there has been a ruling that the parties in the action should be given a chance to be heard regarding [*251] the alleged settlement which may affect their interests.

Mr. Pandelides argued that no final settlement has been recorded by the Court and that a compromise, is not binding unless and until it is recorded by the Court; and it does not matter what Mr. Clerides, said to the Court, but, what the Court did and, the Court merely adjourned the case without recording any settlement. Further, he argued that Mr. Clerides on 30.6.75 applied for the settlement to be recorded provisionally and that he did not apply for the terms of the settlement to be recorded as between plaintiffs and defendants No.3 as alleged by the other side.

Pausing here for a moment we would like to say that we do not agree with either counsel. It is obvious that what Mr. Clerides has said to the Court is as follows: "I apply for the settlement to be recorded as provisional and to be finalised within a few days regarding defendant 2 .... That the settlement will be final as from now with regard to defendants 3". So, the statement of Mr. Clerides to the Court was to the effect that the settlement to be recorded as provisional was with regard to defendant 2; he did not state to the Court to record the settlement with regard to defendants 3; he merely stated with regard to defendants 3 that the settlement was final as from that date i.e. 30.6.75.

Learned counsel for defendants-respondents No. 3 contended that among the heirs there was a minor and even if there was a settlement this settlement is a nullity because the Court did not approve it and furthermore the [*252] alleged settlement it is not for the benefit of the minor. He also said that even if the settlement was recorded it would have still been ineffective because counsel did not have the authority of the other administrator. On this point he cited paragraph 536 of the Halsbury's Laws of England, 3rd edition, vol. 16.

Mr. Pandelides further contended that the application is based on certain rules, and the application to succeed must claim a remedy within the rules and that Order 3 contains nothing which the applicants claim and that there is no such remedy in Order 3. Likewise Order 27 rules 1 , 2 and 3 is not concerned with any legal point but is concerned with points of law which are raised by the pleadings and so it is inapplicable in the present proceedings. He concluded that Mr. Nicolaides claims a remedy unknown to our legal system. On this point, Mr. Komodromos contended that the question is not whether this application can stand on the rules but whether a defendant who compromised an action can proceed with it.

Mr. Pandelides said that applicant No.2 who sworn the affidavit in support of the application in her crossexamination she said that she did not know the contents of her affidavit and therefore this application must fail because it amounts as if the application is not supported by any affidavit.

Dealing with this last point raised by learned counsel for respondents we are not inclined to agree with him. The applicant No. 2 did not contradict her affidavit [*253] though it is true that she did not know all the contents of her affidavit; but, she definitely said that on

30.6.75 there was a settlement and she also said in her cross-examination the terms of the settlement. In our mind what she did not know is of no importance because the material contained in her affidavit is part of the file which is an Exhibit before the Court. Therefore, this point fails. Also fails the submission of counsel for the respondents that the applicants waived their rights with regard to defendants-respondents 3 since three years have elapsed from the alleged settlement.

We do not hold this view, in as much as counsel for the applicants on all appearances before the Court subsequent to

30.6.75 counsel for the plaintiffs stressed the point that there was a settlement.

We do not agree with Mr. Nicolaides that the settlement was recorded by the Court and that the settlement was pronounced by the Court as he put it. We propose to rely on the record of the Court and no evidence can be adduced to contradict it. The record of the Court dated 30.6.75 speaks for itself and the terms of the settlement have not been recorded.

We agree with learned counsel for the applicants and learned counsel for defendant 1 on the general principles governing cases where a settlement is reached between the parties, as stated to us in their addresses. We agree that where there has been a settlement between the parties and the action was dismissed on the terms of the settlement then a [*254] party cannot proceed in the same action but he must bring a new action based on the settlement because the settlement supersedes the claim in the action, But, in the present case the facts are that there has been a statement only by counsel appearing for defendants 3 that there has been a final settlement as from that date and the Court adjourned the action for hearing. There has been no final act on the part of the Court with regard to defendants 3. The Court did not dismiss the action against defendants 3 on the terms of the settlement or gave judgment or order on the terms of the settlement. As we understand it a party continues to be a party to the action unless and until either the action is dismissed by the Court or judgment or order is given against it by the Court. In the case in hand neither the action was dismissed as regards defendants 3 nor judgment or order was given against them and in our opinion defendants 3 continue to be parties to the Action 814/71,

The facts of the case cited by the counsel in Green v. Rozen & Others, (1955) 2 All E.R. 797 are different from the facts of the present case. That case deals with the jurisdiction of the Court to enforce a settlement and the methods of disposing of actions where terms of settlement agreed before or during the hearing. The facts of that case are that the plaintiff brought an action to recover £500.- money lent by him to the defendants jointly, and a further sum of £50.- alleged to be due from the first defendant as consideration for making the loan to the three defendants jointly. When the action came on for hearing counsel informed [*255] the Court that the action had been settled and what the terms of settlement were. By the agreed terms, which were set out on the hacks of counsels’ briefs and signed by counsel for both parties, the defendants were to pay to the plaintiff the sum of £450.- by instalments, on the dates stated, and taxed or agreed costs with the final instalment, and if any instalment was in arrear, the whole debt and costs became due and payable at once. On the front of the briefs was written: "Before

- J. By consent, all proceedings stayed on terms indorsed on briefs. Liberty to either side to apply". The Court was not asked to make any order whatsoever, and no order was made staying all further proceedings. The defendants having failed to pay the last instalment and the costs, the plaintiff made an application in the original action asking for judgment for the amount of the final instalment and/or an order for the costs. It was held that the application must be refused because, the Court having made no order in the action, the agreement compromising the action between the parties completely superseded the original cause of action and the Court had no further jurisdiction in respect of that cause of action. In the course of the judgment of this case Slade, -J. , described the various methods of disposing of an action where the terms of settlement agreed before or during the hearing.

Having examined this case we are of the view that the methods disposing of an action where the terms of settlement agreed before or during the hearing in England differ from the methods of disposing of an action in Cyprus. [*256]

Furthermore, in that case there was an agreed settlement, the terms of the settlement were set out on the hacks of counsels' briefs and signed by counsel for both parties, unlike the facts of the present case. Also in that case there has been an implementation of the settlement and it was only when the defendants failed to pay the last instalment and the costs that the plaintiff made an application in the original action asking for judgment. Again the facts of the present case are not similar to the facts of that case and we think that that case does not help the applicants in their application.

Further, we agree with Mr. Pandelides that the Civil Procedure Rules on which the application is based are inapplicable in the present application and we do not think that Mr. Komodromos is right when he said that the question is not whether this application can stand on the rules but whether a defendant who compromised an action can proceed with it. If there was a mere technicality we would have been inclined to agree with Mr. Komodromos but we think that in this case we are not concerned with a mere technicality; it is for the person who claims something to ascertain and follow the proper course in pursuing his claim. It cannot be said that if a person pursues a claim by originating summons instead of a writ that the Court can decide the claim without taking into consideration whether he had followed the proper course. Bearing in mind the nature of the prayer we have not been satisfied that the applicants followed the correct course. Certainly such a claim cannot be pursued on the Civil Procedure Rules on which the prayer is based.[*257]

Both Order 3 and Order 27 rules 1, 2, 3, are inapplicable in the present proceedings. Order 3 deals with the change of an Advocate and there is no remedy contained in Order 3 as claimed by paragraph (a) of the application, With regard to Order 27 rules 1 , 2, 3 it is apparent that it is invoked when a point of law is raised by the pleadings and the Court is called upon to decide such point of law in order to save time and expense. As the present application is not concerned with a point of law raised by the pleadings Order 27 is, therefore, inapplicable.

What it transpired from the hearing of this application is that there is a dispute between the parties whether a settlement was reached between the applicants and respondents No.3 and what were the terms of the settlement and whether such settlement is binding upon the defendants 3 and, this in view of the contents of the two affidavits in support of the opposition. This cannot be decided in the present application. There must be pleadings raising the issue before the Court. If the action was dismissed against defendants 3 on the terms of the alleged settlement or a judgment or order was given against them by virtue of a settlement then the defendants 3 ought to bring an action for this purpose setting out the grounds upon which they based their claim. Since the action stands against defendants 3 as there has been no final act against them by the Court, we think that the applicants can pursue this issue in a different manner, viz by way of action asking for a declaration that there was a settlement and for an order as per the terms of the settlement. But, [*258] we must not be taken that we have decided the mode with which the applicants will pursue their claim. If such an action will come before us and if objection is raised with regard to this point we shall decide this issue having first heard arguments by the parties concerned. For these reasons we refrained to deal with the points raised in the affidavit in opposition whether there was a settlement and whether such settlement is valid.

For all these reasons the application is dismissed.

Applicants to pay the costs of respondents 2 and 4 for one advocate and the costs of respondents No.3. With regard to respondent No.1 we propose to make no order as to costs because respondent 1 supported the applicants in their application. Costs to be assessed by the Registrar. Costs to be paid after judgment is given in Action No. 814/71.

Application dismissed.

Order for costs as above.

+ An appeal was filed against the above decision which was dismissed after withdrawn by consent of both parties. The order for costs of the Court below was, by consent, set aside and an order that the costs of the appeal should be costs in the cause in the action but, in any event, not against defendants 2, 3 and 4 in the action was, also, made by consent.