Abir Chandra Gupta @ A.C. Gupta vs Sabita Dutta

Chittatosh Mookerjee, J.—We accept the report of the Stamp Reporter that this appeal directed against the order of the learned Judge, third Bench City Civil Court, Calcutta refusing to record an alleged compromise is not maintainable at this stage. The CPC (Amendment) Act, 1976, having deleted clause (m) of sub-rule (1) of Order 43 of the Code of Civil Procedure, 1908 and order under Rule 3 of Order 23 of the Code recording or refusing to record an agreement, compromise or satisfaction is no longer appealable u/s 104 read with Order 43 Rule 1 of the Code. The appllant cannot contend that this appeal is maintainable by relying upon sub-rule (2) of Rule 1A of Order 43 of the Code or Civil Procedure which was inserted by CPC (Amendment) Act 1976, Under toe said sub rule (2) in an appeal from a decree passed in a suit alter recording a compromise or refusing to record a compromise, it is open to the appellant to contest the decree on the ground that the compromise should or should not nave been recorded, in the instant case although the learned Judge of the court below has refused the prayer of the defendant for recording compromise, he has not yet passed any decree in the suit. If and when an appeal would be preferred against & decree is passed in the suit the appellant in the said appeal might contest the said decree on the ground that the compromise should have been recorded. This provision In Order 43 Rule 1A of the Code appears to have been inserted to give effect to the section 105(1) of the Cede of Civil Procedure which inter, alia confers right to challenge non- appealable orders in appeal against decree.

For the foregoing reasons, we direct that unless the memo of appeal is taken back within two weeks from date, put up the appeal for final orders.

R.K. Sarma

I agree.