Mangal Pati and Others vs Hari Singh and Others

D.V. Sehgal, J.—This second appeal is directed against the order dated 6th August, 1984 passed by the learned Additional District Judge, Sonepat, holding that the compromise recorded by the trial Court was not lawful nor was it in conformity with the provisions of Order 23, Rule 3 the CPC (for short the ''Code'')- As a result the appeal was allowed by the learned Additional District Judge, the decree dated 27th September, 1982 passed by the Senior Subordinate Judge, Sonepat, was set aside and the suit was remanded for its. trial on merits.

It is not necessary to detail the facts giving rise to the litigation because in my view the present appeal is not maintainable. All that needs to be noted is that during the pendency of a suit filed by Plaintiff-Appellants Nos. 1 and 2 an application was made by them on 13th June, 1980 for disposing of the suit on the basis of a compromise dated 13th December, 1979. On this application the learned trial Court framed the following issue:

Whether the suit has been compromised between the parties as alleged?

After recording the evidence for and against the alleged compromise, the learned trial Court ordered the same to be recorded and passed, a decree in accordance therewith. Defendant-Respondents Nos. 1 and 2 filed an appeal against the aforesaid order and decree of the trial Court which has been allowed by the learned Additional District Judge, through the judgment under appeal. It has been held therein that the aforesaid compromise was not in conformity with Order 23, Rule 3 ibid and as such the trial Court fell in error in recording the same and passing a decree on its basis.

Today when this appeal came up for hearing before me, I expressed my doubt about its maintainability. I, therefore, heard the learned Counsel for the Appellants on this point It is to be noted that u/s 96(3) of the Code no appeal lies from a decree passed by the Court with the consent of the parties. It is, therefore, clear that the appeal which was preferred from the order of the trial Court recording the compromise and passing the decree and which has been disposed of by the learned Additional District Judge, was not an appeal falling within the ambit of Section 96 ibid. Before coming into force of the CPC (Amendment) 1976 with effect from 1st February, 1977 Clause (m) of Rule (1) of Order 43 of the Code provided that an appeal lay from an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. Clause (m) ibid was, however, deleted by the Amendment Act and instead Rule 1-A was inserted in Order 43, which, inter alia, provides that 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. It is not disputed that Order 43 provides for appeals from orders in pursuance of Clause (i) of Sub-section (1) of Section 104 of the Code. Thus, there cannot be any doubt that the appeal disposed of by the learned Additional District Judge by his order dated 6th August, 1984 is an appeal within the meaning of Section 104 of the Code. Sub-section (2) of Section 104 ibid lays down that no appeal shall lie from an order passed in appeal under the said Section. As such the present second appeal is clearly barred by Section 104(2) of the Code.''

Learned Counsel for the Appellants then urged that this appeal may be treated as a revision petition u/s 115 of the Code and disposed of accordingly but he could not satisfy me that the order passed by the learned Additional District Judge, suffers from any error in the exercise of his jurisdiction. I, therefore, find no substance in the submission so made. Consequently, this appeal is dismissed. Since the Respondents are not represented before me there shall be no order as to costs.