L PRITHI RAJ Vs. BALLABH DAS

JUDGEMENT

(1.) This is a Defendant's appeal against the judgment and order of the learned Civil Judge, Mathura whereby he set aside in appeal, the judgment and decree of a learned Munsif of that place and directed the recording of the compromise dated 7-2-1963.

(2.) The facts giving rise to this appeal are short and simple. The Plaintiff-Respondent brought a suit against the Defendant-Appellant for the recovery of a certain sum of money on the basis of a pronote. The Defendant-Appellant was served with the notice of the suit but he did not appear on the due date nor did he file any written statement. Thereupon the case was ordered to be listed for the recording of the Plaintiff-Respondent's evidence on 7-2-1963. On that date the Plaintiff-Respondent was examined exparte and judgment was reserved. On 27-2-1963 the learned Munsif dismissed the suit exparte. The Plaintiff Respondent appealed against the exparte decree to the lower appellate court and during its pendency there he moved an application alleging that the parties had compromised their dispute on 7-2-1963 and praying that a decree be passed in terms of that compromise Under Order 23, Rule 3 Code of Civil Procedure. The Defendant-Appellant opposed that application and denied the compromise in question. Thereupon the lower appellate court recorded the evidence of the parties and accepting that of the Plaintiff-Respondent passed the order under appeal.

(3.) On behalf of the Defendant-Appellant a number of contentions were advanced in support of this appeal, but as one of them is alone sufficient for its disposal, I shall refer to that contention only. According to the Appellant's Learned Counsel, while it was true that an appeal was a continuation of the suit and the appellate court's powers are the same as those of the trial court, nevertheless, as after the passing of the exparte decree, the trial court could not record the compromise without first setting aside the exparte decree, the lower appellate court also could not record the compromise without first set ting aside that decree. So far as the trial court's powers to set aside the exparte decree were concerned he contended, that the said court could do so only if a case for reviewing it Under Order 47, Rule 1 Code of Civil Procedure or setting it aside on the ground of fraud etc. was made out and as neither of those remedies were, or could be, availed of, in the instant case, neither that court nor the appellate court could record the compromise in question. After hearing the Learned Counsel for the parties, I am satisfied that this contention is well-founded.