Sri Toleti Satyanarayanamoorthi vs Jayanti Butchayya

Srinivasa Aiyangar, J.—In the case from which this revision petition arises the petitioner was the defendant. He filed an application under

Order 23, Rule 3, for recording a compromise alleged to have taken place between him and the plaintiff to be recorded. The Court of first instance

found for the compromise and passed an order for its being duly recorded. On appeal the Subordinate Judge disbelieved the case for the

defendant and found that the fact that there had been a compromise was not satisfactorily established and dismissed the petition of the defendant.

Before merit has been sought to be urged by the learned vakil who appeared for the petitioner that the plaintiff had no right of appeal to the Lower

Appellate Court because the order passed by the Court of first instance became merged in the preliminary decree passed at the same time by the

Court. Reliance was placed for that position on the decision in Alamelu Ammal Vs. Rama Aiyar and Another, . There the learned Judges, Oldfield

and Venkatasubba Rao, JJ., observed as follows :--"" The order in question is one regarding a compromise between the parties. Decree in terms of

that compromise was passed later. It is impossible to see how there can be an appeal against the order when it has become merged in the

subsequent decree. ""It seems to me that, with all respect, the correctness of that decision is open to doubt. However that may be, for the purposes

of the present case it is enough to say that the learned Judges thought that the fact that the decree in terms of the compromise was passed later was

a point of distinction. In this case the decree was passed immediately and as part of the order recording the compromise. I may refer here to the

case of Govindasami v. Kali Perumal (1922) 16 LW 155, where Sadasiva Aiyar and Coutts Trotter, JJ., held that even when there was a decree

passed according to the terms of the compromise an appeal would properly lie against the order recording or refusing the compromise. A similar

view has been taken in Megh Raj v. Tulsi Ram (1924) 6 Lah. LJ 187. In Paban Sardar v. Bhupendra Nath Nag ILR (1915) C 85, Jenkins, C. J.

and Chatterjee, J. have laid down that the omission by the Court of first instance to make a formal order recording the compromise, but merely

passing a decree in accordance with the terms of the compromise was irregular, because it had the effect of depriving the parties of the statutory

right of appeal against the order given by Clause (u) of Order 43, Rule 1. Therefore I am satisfied there is no foundation for the objection taken,

namely, that the appeal to the Lower Appellate Court was not competent. In this view there is no other question of jurisdiction before me.

The learned vakil has drawn my attention to certain facts and circumstances which go to show that the Lower Appellate Court might have

conceivably gone wrong in its appreciation of the evidence. But sitting here in revision I have no right to interfere with the conclusion of fact arrived

at by the Lower Appellate Court.

The revision petition is accordingly dismissed with costs.