MOLLA SIRAJUL HAQUE Vs. GORACHAND MULLICK

JUDGEMENT

(1.) -Facts necessary for the disposal of the application before us have been succinctly stated by Ray, J. in his Judgment hereinafter following. The questions of law involved have also been dealt with by him with his usual dexterity. I have agreed wholly with the Order proposed by him and mostly with what he has stated as the reasons for the Order. I say mostly and would therefore indicate hereinbelow where I have not been able to agree with him.

(2.) In the two appeals arising out of two interlocutory Orders passed in suits between the parties, one of the parties has filed an application under Order 23, Rule 3 of the Code of Civil Procedure for recording adjustment of all the suits between the parties on the basis of an alleged agreement. Order 23, Rule 3, though ex facie applying to Courts trying Original Suits, would apply to Appellate Courts also in view of section 107(2) of the Code investing them with all the powers and duties of Courts of Original Jurisdiction. Ray, J., has chosen to invoke section 141 of the Code for enabling Appellate Courts to exercise the powers of an Original Court. With respect, the Code applies to Appellate Courts on its own and, as already noted, section 107(2) expressly clothes the Appellate Courts with all the powers of the trial Court.

(3.) True, the Suits are not before us in the form of appeals from decrees, but there are only two appeals from interlocutory Orders passed in the Suits. It is also true that under Rule 3, as it stood before the 1976 Amendment, compromise could relate only to the matters in Suit. If the matter stood at that, we sitting in appeal, could record compromise only on matters so far it related to the matters covered by the appeals only and could not go beyond the matters covered by the interlocutory Orders giving rise to the appeals. But Rule 3, as now amended in 1976, authorises recording of compromise on all matters which relate to the parties before us and, therefore, nothing should prevent us from recording a compromise in these appeals on any matter provided they relate to the parties before us, even though they are not covered by the scope of the appeals. Mr. Sen has also, with his usual fairness, conceded that, though he has opposed the application on other grounds. Ray, J., has also no doubt as to our competence to record adjustment of all the Suits even in these appeals from interlocutory Orders; but he has rejected the application on merits. I agree with brother Ray for reasons stated hereunder. The relevant portions of the provisions of Rule 3 of Order 23 are reproduced hereunder :-