HANS U NAGAR Vs. JOHN NAGAR

JUDGEMENT

(1.) The present appeal has been filed by the appellant (defendant No.1 in CS (OS) 666/2008, instituted by the respondent No.1/plaintiff), being aggrieved by an order dated 29.10.2018, passed by the learned Single Judge, dismissing an application moved by him under Section 94 CPC read with Order XXIII Rule 3A CPC, praying inter alia that the compromise arrived at between the parties as recorded on 12.4.2012, may be set aside.

(2.) By this order, we propose to dispose of the preliminary objection take by learned counsel for the respondents No.1 and 2 to the maintainability of the present appeal, filed under Section 10 of the Delhi High Court Act, 1966 (in short, 'the Act').

(3.) Mr. Pradeep Dewan, learned Senior Advocate appearing for the respondent No.1 contends that Section 10 of the Act cannot be invoked by the appellant/defendant No.1 to assail the order dated 29.10.2018, passed by the learned Single Judge and if aggrieved by the settlement that was arrived at between the parties and recorded in the order dated 12.4.2012, the appellant had only two options. The first option was under the proviso appended to Order XXIII Rule 3 CPC and the other option is available under Order XLIII Rule 1A (2) that deals with the right to challenge non-appealable orders in appeal, against decrees. Learned counsel also cited Section 96(3) of the CPC which contemplates under what circumstances does an appeal lie from the original decree, to urge that the said provision makes it amply clear that no appeal shall lie from a decree passed by the Court with the consent of the parties and argued that in the instant case, the suit instituted by the respondent No.1/plaintiff having been decreed in terms of a consent order, the present appeal is not maintainable. To substantiate his submission, reliance has been placed on the following decisions:-