(1.) The applicant filed a suit against the respondents for the recovery of Rs. 1,39,000 due on a promissory note. The trial court ordered to be recorded a compromise which the applicant contended had been arrived at between the parties during the pendency of the suit,, and it passed a decree in the terms of the compromise save with regard to one provision thereof. Two of the defendants appealed to this Court under Order XLIII, Rule 1 (m) C. P. C. against the order recording the compromise, and this Court by an order dated the 28th September, 1959, allowed the appeal and set aside the order of the trial court. The plaintiff then filed an application for a certificate under Article 133(1) (a) of the Constitution and the Bench hearing the application has referred to this Court the following question.
(2.) Now this Court has held, and the same view has been taken by other High Courts in India that an order setting aside the order of a lower court directing that a compromise be recorded is an interlocutory and not a final order within the meaning of Section 109 C. P. C. : Bhagwati Dayal v. Mst. Dhan Kunwar, AIR 1926 All 311, Shanker Bharti v. Narsinha Bharti, AIR 1922 Bom 383, J. J. Srito v. Mrs. S.S. Brito, AIR 1924 Mad 701, Sourendra Nath Mitter v. Sm. Tarubala Dassi, 29 Cal WN 832 : (AIR 1925 Cal 85Y), and F.A. Savi v. Sabitri Thakurain, AIR 1927 Pat 363. All that such an order does, in the words of Crump, J. in the Bombay case, quoted with approval in Bhagwati Dayal's case, AIR 1926 All 311,
(3.) These cases were decided before 1950 and learned counsel contends however that the order against which leave to appeal is now sought, although it may not be a final order, is a judgment within the meaning of Article 133(1) of the Constitution. Learned counsel put his argument in two ways. In the first place he sought to contend that any order which finally disposed of whatever proceedings were then before the Court was a 'judgement'. No authority was cited in support of this proposition which in my opinion is clearly untenable, for it would have the result that all interlocutory orders would be judgment and an interlocutory order is not a judgment within the meaning of this Article: Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1958 SC 253. 3. Secondly, learned counsel argued that proceedings in a suit leading up to and including the recording of a compromise are proceedings which are independent and separate from the suit: they are similar in character to proceedings resulting in the grant of an interim injunction, and as this court has recently held in Standard Glass Beads Factory v. Shri Dhar, 1960 All LJ 387 : (AIR 1960 All 692) (FB), that an order dismissing an appeal against an order granting temporary injunction is a judgment within the meaning of Clause 10 of the Letters Patent, also it should hold that the order now under consideration is a judgment for the purpose of Article 133(1). 3a. The basis of the majority decision in the Standard Glass Beads Factory case 1960 All L| 387 ; (AIR 1960 All 692) (FB), is that the order in question was made in an independent proceeding ancillary to the suit and instituted with a view to render the judgment, if obtained, effective. The nature of an application to record a compromise, as Rankin, J. (as he then was) pointed out in 29 Cal WN 832 : (AIR 1925 Cal 8571
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