PILLAMMA Vs. C PUTTANNA

JUDGEMENT

(1.) THIS Miscellaneous First Appeal is directed against the order dated 21. 02. 2004 passed in o. S. No. 859/2003 on the file of I Additional Civil Judge (Sr. Dn.), Bangalore Rural District recording the compromise entered into between the parties. The appellant has also challenged the decree passed by the Court below on 05. 03. 2004 and has further sought for dismissal of the suit O. S. No. 859/2003 filed by the plaintiff-respondent herein.

(2.) AT the time of hearing of the appeal, Learned Counsel for the respondent (plaintiff before the court below) has raised a preliminary objection regarding the maintainability of this miscellaneous First Appeal. In this regard, he places reliance on Order XXIII Rule 3, Order XLIII rule 1 A, Section 96 (3) and Section 104 of the CPC. He has also placed reliance on two decisions of the Apex Court in the cases of: (i) Banwari Lal Vs Smt Chando Devi (Through Lr) and Another AIR 1993 SC 1139 (hereinafter referred to as Banwari Lal's case) and (ii) Kishun Alias Ram Kishum (dead) through LRs VS by LRs AIR 2005 SCW 3823 (hereinafter referred to as Kishun Alias Ram Kishum's case)It is the contention of the Learned Counsel for the respondent that as the appellant is challenging the decree passed on compromise, no Miscellaneous First Appeal lies either against the order passed on the compromise petition or against the decree drawn eventually based on the said compromise.

(3.) ORDER XLIII Rule I which deals with appeals against non-appealable orders did contain a provision providing for appeal against an order passed on a compromise petition in sub rule (m)Rule 1. The same came to be deleted 'by Act 104 of 1976 with effect from 01. 02. 1977. A new provision under Rule 1a came to be added to Order XLIII which reads as under: