Sabitri Thakurain vs F.A. Savi and Others

Jwala Prasad, J.—This miscellaneous appeal has come up on account of the report of the Stamp Reporter. According to him the appeal is. incompetent against the order of the Subordinate Judge directing the compromise to be Recorded and a decree to be passed in accordance therewith under Order 23, Rule 3, inasmuch as the decree was already drawn up.

The case of the Bengal Goal Co. Ltd. v. Apcar Collieries Ltd. AIR 1926 Cal. 412, has been cited by the Stamp Reporter in support of his view. The decision in that case is based upon the authorities of the Calcutta High Court cited therein: Nanibala Dasi and Another Vs. Ichhamoyee Dasi and Others, . Madhu Sudan v. Kamini Kanta [1906] 32 Cal. 1023. Mackenzie v. Narsingh Sahai [1906] 36 Cal. 762. and Ugra Narain Singh v. Basanta 17 C.W.N. 868. Most of these cases if not all, relate to preliminary and final decrees referred to in Section 97, Civil P.C. That section says:

Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

The learned Judges of the Calcutta High Court have drawn an analogy between a preliminary and a final decree such as are referred to in Section 97 and an order directing a compromise to be recorded passed under Order 23, Rule 3, and the decree passed in terms of the compromise; and they record their view in the following words:

That the appeal was incompetent in that a decree having been passed before the appeal was filed an appeal lay from the decree and not from the order which was superseded by the decree.

The ratio decidendi, according to the learned Judges, is that if the order passed under Order 23, Rule 3, is set aside in appeal, the decree not appealed against may remain which would be an anomaly. The net conclusion arrived at is that though an order passed under Order 23, Rule 3, is expressly appealable under Order 43, Rule 1(m), it becomes unappealable the moment a decree is formally recorded in pursuance of the order passed under Order 23, Rule 3. Undisputedly an express right of appeal has been conferred against an order directing a compromise to be recorded parsed under Order 23, Rule 3. Order 43, Rule 1(m) stays:

An appeal shall lie from an order under Rules 3, Order 23, recording or refusing to record an agreement, compromise or satisfaction

Rule 3, Order 23 makes it imperative upon a Court to forthwith pass a decree when it orders that the agreement, compromise or satisfaction shall be recorded. The words in that rule pertinent to the question in hand are as follows:

The Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.

The date of the decree is always under the Code the date of judgment or the order upon which the decree is founded, and it is presumed that no delay chronologically should happen between the passing of the judgment or the order and the decree which follows it. The delay which happens in actually signing a decree is due to the time, taken up in its preparation in office, but that is not the real date of the decree. The real date of the decree is the date when the judgment is pronounced.

In fact, the decree in the present case, as evidently the decree states that the suit coming on 30th day of July, 1928 for final disposal, etc., bears the same date and the case was disposed of upon the date upon which the order was passed. We have not to take into account the ministerial delays caused in the preparation of the decree. Ordinarily within the terms of the section the order and the decree should be simultaneous. If that is so, the right of appeal from the order that the agreement, compromise or satisfaction be recorded can be easily frustrated by preparing a decree at once, giving no time to the aggrieved party to appeal against the order recording the compromise, and in majority of cases the time allowed for an appeal from such an order allowed by law will always be curtailed. In the present case the order under the first part of Rule 3 was passed, on 30th July 1928. A copy of the order was forthwith applied for by the appellant and was prepared on 4th August; it was handed over to the appellant on 6th August, the 5th August being Sunday. The decree was actually prepared and signed by the Subordinate Judge on 9th August 1928. A copy of this also was applied for and obtained on 18th August. The decree concludes in the following words:

Given under my hand and seal of the Court this 10th day of July, 1988. Signed H. Charan, first Subordinate Judge, 9th August 1928.

As I have observed above, the date of the order is the date o� the decree, and the delay of a few days is due to the preparation of the decree by the office. If we take 30th July as the date of the decree, then there was no time for the appellant to file his appeal. If 9th August be deemed to be the date of the decree being passed, then the light of appeal is curtailed from 30 days to 8 or 9 days. If it was the intention of the legislature that the right of appeal from the order directing a compromise to be recorded should be lost after the decree is passed, there should have been a direction to delay the passing of the decree until the time for'' filing the appeal had elapsed. This has not been done. On the other hand, the rule says:

the Court...shall pass a decree in accordance therewith.

Therefore, to my mind the right of appeal against the order directing a compromise to be recorded passed under Order 23, Rule 3 is not lost by reason of the decree having been passed in accordance with the order. Section 97 is an express provision dealing with preliminary and final decrees and says that after a final decree is prepared the right of appeal against the preliminary decree is lost. Such a clear provision has not been made in respect of an order passed under Rule 3, and the decree that follows the order. I am not prepared to draw an analogy between an order passed under Rule 3, Order 23 and a preliminary and a final decree referred to in Section 3 of the Code. There was some conflict of views in the Madras High Court as reported in Govindaswami Kadavararn v. Kaliaperumal Munayathiriyan [1920] 16 M.L.W. 155 and Alamelu Ammal v. Bama Iyer AIR 1922 Mad. 446. These authorities have been considered in a later decision of that Court in Satya narayanamoorthi v. Butohayya A.I.R 1925 Mad. 606. which inclines very much to the view that I have taken. The Lahore High Court in Megh Raj Tej Bhan v. Tulsiram Devidittamal AIR 1924 Lah. 466. favours the same view. Sir Lawrence Jenkins in the case of Paban Sardar v. Bhupendra Nath Nag [1915] 43 Cal. 85 indirectly supports the view. Now if the Calcutta High Court''s view as expressed in the decision in the case of Bengal Coal Co. Ltd. v. Apcar Collieries Ltd. AIR 1926 Cal. 412. is followed to its logical consequences, the result would be that there will be no remedy left at all to a party aggrieved by an order of the Court, directing a compromise to be recorded in spite of the fact that he has been repudiating the compromise from the very beginning, inasmuch as after the order of the Court directing the compromise to be recorded and a decree being paased thereon, I am afraid the right of appeal may be lost altogether by reason of Section 96(3) of the Code which says that

no appeal shall lie from a decree passed by the Court with the consent at parties.

There was a difference of opinion as to whether a decree passed after an adjudication under Rule 3, Order 23, overruling the objection of a party to the compromise would be considered to be a decree passed by consent of parties, or that such a decree should be restricted only to when the parties in Court then and there express their consent to a decree being passed for the divergent views on this point I would refer to Govindaswami Kadavaram v. Kaliaperumal Munayathiriyan [1920] 16 M.L.W. 155 The Calcutta High Court also has not gone so far inasmuch as it is of the view that the aggrieved; party though he may not be able to appeal against the order recording the compromise, may nevertheless appeal against the decree passed in accord pee with that order, and in that case the appeal preferred against the order directing the compromise to be recorded was treated as am appeal against the decree itself upon payment of proper Court fee. la trying to get rid of the anomaly u/s 97 Civil P.C. to my mind the Calcutta High Court''s decision with great respect to the learned Judges who decided" that case, has created another anomaly as regards the right of appeal against the decree passed by consent u/s 96 Clause (3) of the Code.

In the present case the appellant has also filed a pauper appeal against the final decree.

The order that I would propose to make in the present case is that the miscellaneous appeal with which we are dealing at present be admitted.