Chinnaswami Pillai and another vs Thyagaraja Nainar

Veeraswami, J.—The substantial point in this civil miscellaneous appeal is whether the appeal filed in the lower appellate court wag

maintainable. Pending the suit for possession, the defendant-appellant filed an application under O. 23, R. 3, C.P.C. for an order recognizing an

adjustment of the dispute out of court. The plaintiff-respondent contested this application but eventually the application was ordered on a finding

that the adjustment pleaded by the respondent was proved. In view of the order made hi the application under Order 23, Rule 3 C.P.C. the trial

Court dismissed the suit.

The respondent filed an appeal against the decree in the suit but not against the said order. The lower appellate Court overruled an objection and

held that the appeal was maintainable on the view that the order accepting the petition to record the compromise and the dismissal of the suit were

one and the same. The lower appellate Court then went into the other points and ultimately allowed the appeal, remanding the suit for fresh trial on

the merits.

Sri M.R. Narayanaswami, the learned counsel for the appellant, contends before me that the view of the lower appellate Court that the appeal

before it was maintainable is erroneous. He urges that as the compromise was found proved in the application under O. 23, R. 3 C.P.C, the basis

of the decree dismissing the suit was really the compromise so proved, and that for purposes of S. 96(3) it did not make any difference that the

consent to the compromise was given not at the time when the decree was passed by the trial Court; but earlier. In support of his contention the

learned counsel has relied on the decision in Govindaswami Kadavaran Vs. Kaliaperumal Munayathiriyan and Others, .

On the other hand, Sri K.S. Desikan, the learned counsel for the respondent, relies on the decision in Ayyagiri Veerasalingam Vs. Koovur Basivi

Reddi and Another, and contends that a decree passed on the basis of an independent order recognizing a compromise, cannot be said to be a

decree passed by the court with the consent of the parties. Sri Desikan has stressed that in this case the plaintiff as a matter of fact denied he ever

gave his consent to any compromise, and that whether there was a compromise or not was itself the issue in the application of the defendant under

O. 23, R. 3 C.P.C. When there was a protest on the part of the plaintiff that he ever gave his consent, so ran the argument, the decree cannot be

said to have been passed with the consent of the parties.

In Ayyagiri Veerasalingam Vs. Koovur Basivi Reddi and Another, the material facts were more or less similar to those in the present case. In

that case there was an order made under O. 23, R. 3 C.P.C, recognizing a compromise. On die foot of that order a decree followed in the suit. An

objection was taken to the maintainability of the appeal against the decree on the ground that it was one passed with die consent of the parties

within die meaning of S. 96(3) C.P.C. In repelling the objection, Sadasiva Aiyar J. and Tyabji J. held that the decree itself was not one passed with

die consent of parties, but the Court having found earlier that there was consent of the parties to die terms of the compromise agreement which

was recorded, it passed a decree in accordance therewith, notwithstanding the objection of one of the parties.

In other words tile learned Judges considered that the fact that consent for the terms of the compromise had been found to be true on an

application under O. 23 R. 3 C.P.C. was not the same as a consent to a decree being passed in the suit. If this view is to be followed, the

objection to the maintainability of the appeal in the lower appellate Court has got to be overruled. But then on almost similar facts the learned

Judges in Govindaswami Kadavaran Vs. Kaliaperumal Munayathiriyan and Others, , reached a diametrically opposite conclusion on tile

maintainability of the appeal.

One of the learned Judges in that case was Sadasiva Aiyar J. who was a party to the decision in Ayyagiri Veerasalingam Vs. Koovur Basivi Reddi

and Another, . Referring to the earlier decision Sadasiva Aiyar J. expressed that although there was force in the view upheld in that case,

nevertheless, the learned Judge on a reconsideration thought that the better view would be to hold that a decree passed in circumstances similar to

those mentioned above, should be regarded as one passed by the Court with the consent of the parties, Sri Desikan for the respondent urges that

in view of the conflict between the two decisions, I must refer this civil miscellaneous appeal to a Division Bench, if not a Full Bench, for final

dispersal. But, on a careful consideration of the question, it seems to me that it is not necessary to follow this course for the following reasons.

The substance of the matter is that although the consent to the terms of the compromise was found established in a separate order on an

application under O. 23, R. 3 C.P.C, the basis of the decree in the suit was really the consent so established. It is no doubt true that the plaintiff in

the suit denied the consent. But that, in my opinion, can make no difference in view of the fact that the consent had been established or proved in

the application under O. 23, R. 3 C.P.C.

So long as that order stands, one has to proceed upon the footing that the terms of the compromise have been consented to; and that is the

foundation for the decree in the suit. The proper remedy in such a case for the party aggrieved against the order recognizing the compromise is to

file an appeal against it which has been provided for by the Code. It is this view, which I think is the correct one, that found favour in

Govindaswami Kadavaran Vs. Kaliaperumal Munayathiriyan and Others, ). As I said, Sadasiva Aiyar J. who was a party to the decision in

Ayyagiri Veerasalingam Vs. Koovur Basivi Reddi and Another, himself on -a reconsideration, accepted the view that a decree passed on the basis

of an order under O. 23, R. 3 C.P.C. recognizing the terms of a compromise, was one passed by the Court with the consent of the parties.

In my view, this fact, with due respect to the learned Judges considerably weakened the authority of the decision in Ayyagiri Veerasalingam Vs.

Koovur Basivi Reddi and Another, . Apart from that, the balance of judicial authority in subsequent decisions not only of this Court but also of

other High Courts appears to be on line with die view held in Govindaswami Kadavaran Vs. Kaliaperumal Munayathiriyan and Others, .

Reference may be made to the decisions in (Seethamraju) Ramanarayana Rao Vs. (Seethamraju) Ramkrishna Rao and Another, Sri Toleti

Satyanarayanamoorthi Vs. Jayanti Butchayya, Umiashanker Naranji v. Shivshanker Prabhashanker, ILR (1944) Bom 405 : (AIR 1944 Bom 239

(2)) and AIR 1936 963 (Lahore) .

In view of what I have said above it follows that die appeal preferred by the plaintiff to the lower appellate court was not maintainable because

of the bar under S. 96(3) C.P.C.

Sri K.S. Desikan wanted to address to me an argument based on S. 105 C.P.C. but, as I have held that die appeal to the lower appellate court

was itself not maintainable, I do not think it necessary to consider that argument.

The result is this civil miscellaneous appeal is allowed, but in the circumstances I make no order as to costs.