CHINNASWAMI PILLAI AND ANOTHER Vs. THYAGARAJA NAINAR

JUDGEMENT

(1.) THE substantial point in this civil miscellaneous appeal is whether the appeal filed in the lower appellate court was maintainable. Pending the suit for possession, the defendant -appellant filed an application under O. 23, R. 3, C.P.C. for an order recognizing an adjustment of the dispute out of court. The plaintiff -respondent contested this application but eventually the application was ordered on a finding that the adjustment pleaded by the respondent was proved. In view of the order made hi the application under Order 23, Rule 3 C.P.C. the trial Court dismissed the suit.

(2.) SRI M.R. Narayanaswami, the learned counsel for the appellant, contends before me that the view of the lower appellate Court that the appeal before it was maintainable is erroneous. He urges that as the compromise was found proved in the application under O. 23, R. 3 C.P.C, the basis of the decree dismissing the suit was really the compromise so proved, and that for purposes of S. 96(3) it did not make any difference that the consent to the compromise was given not at the time when the decree was passed by the trial Court; but earlier. In support of his contention the learned counsel has relied on the decision in Govindasami v. Kaliaperumal, ( : 16 Mad LW 155 : AIR 1921 Mad 696).

(3.) THE substance of the matter is that although the consent to the terms of the compromise was found established in a separate order on an application under O. 23, R. 3 C.P.C, the basis of the decree in the suit was really the consent so established. It is no doubt true that the plaintiff in the suit denied the consent. But that, in my opinion, can make no difference in view of the fact that the consent had been established or proved in the application under O. 23, R. 3 C.P.C.