Israr Husain vs Mohammad Lateef and Others

Mahendra Dayal, J.�The short question involved in this second appeal is as to whether an appeal against an order recording a compromise is maintainable.

The brief facts are that the plaintiff-respondent filed a suit being Regular Suit No. 550/1998 before the Additional Civil Judge (S.D.), Court No. 23, Barabanki, which was decided on 6.1.2011 on the basis of a compromise filed by the parties.

The defendant-appellant preferred a Regular Civil Appeal No. 9/2011 assailing the order passed on the basis of the compromise on the ground that the compromise has been obtained by playing fraud upon the defendant-appellant. The said appeal was dismissed by the learned Appellate Court on the ground that the appeal against the compromise decree was not maintainable.

Learned Counsel for the appellant has submitted that the provision of filing appeal against the decree is provided under section 96 of the Code of Civil Procedure and sub-section (3) thereof prohibits filing of any appeal from a decree passed by the Court with the consent of the parties. The provision for disposal of the suit on the basis of the compromise is provided under Order XXIII, Rule 3, C.P.C. under which a Court, on being satisfied that the suit has been adjusted wholly or in part by lawful agreement or compromise in writing signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith. Sub-rule 3 (1) of Order XXIII creates a bar providing that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

Learned Counsel for the appellant has submitted that by means of amendment in the Code of Civil Procedure by Act No. 104 of 1976, a new Rule 1-A has been added to Order XLIII, C.P.C. which is reproduced as under:

"1-A Right to challenge non-appealable orders in appeal against decrees.-(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest, the decree on the ground that the compromise should, or should not, have been recorded."

Sub-rule (2) of Rule 1-A provides that that in an appeal against decree passed in a suit after recording a compromise or refuse to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.

Learned Counsel Shri Adnan Ahmad appearing on behalf of the appellant submitted that in view of the newly added sub-rule (2) of Rule 1-A, it is clear that now an appeal against a compromise decree could be filed assailing the compromise decree. In support of his argument, he has relied upon a decision of Hon''ble the Supreme Court in Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another, . In this pronouncement, the Hon''ble Supreme Court has held that after deletion of Rule 1(m) of Order XLIII an appeal could not be filed against an order recording compromise. After the deletion of the aforesaid rule, a party challenging the compromise can file a petition under proviso to Rule 3 of Order XLIII or an appeal under section 96(1) of the Code, in which he can now question the validity of compromise in view of Rule 1-A of Order XLIII of the Code. Similar views has been expressed by Hon''ble the Supreme Court in the case in Kishun @ Ram Kishun (Dead) through LRs. Vs. Bihari (D) by LRs., .

In view of the law laid down by Hon''ble the Supreme Court, the submission on behalf of the appellant is- that the learned first Appellate Court should has committed manifest error in law in dismissing the appeal on the ground that it was not maintainable.

Shri Akhter Abbas, learned Counsel appearing on behalf of the respondent has submitted that section 96 as well as Order XLIII of the Code of Civil Procedure clearly prohibit filing of appeal against the decree passed on the basis of the compromise with the consent of the parties. However, he has not disputed the provision of Order XLIII, Rule 1-A, which has been added by way of amendment in the year 1977. He has not been able to place any law contrary to law declared by Hon''ble the Supreme Court in the cases referred to above.

Having heard learned Counsel for the parties and having gone through the relevant provisions of the Code of Civil Procedure and the law laid down by Hon''ble the Supreme Court, I am of the view that the dismissal of the appeal by the learned first Appellate Court on the ground of non-maintainability, is erroneous and is liable to be set aside. In the result, the second appeal succeeds and is allowed. The judgment and decree passed by the first appellate Court dated 18.2.2011 passed by the Additional District Judge, Court No. 1, Barabanki in Regular Civil Appeal No. 9/2011, is set aside. It is directed that the learned First Appellate Court shall restore the aforesaid civil appeal to its original number and shall decide the same afresh on merits treating the appeal as maintainable.

The second appeal is allowed accordingly.

Petition accordingly dismissed.