PARMATMA DEV Vs. CHANAN DEV

JUDGEMENT

(1.) THIS second appeal has boon preferred under the following circumstances:

(2.) THE Appellant brought a suit for possession of certain agricultural land and a house in the Court of the Natb Nazim Dewani Barnala. While the proceedings in the case were still pending in the trial Court the Defendant applied under Order 23, Rule 13 - that since the parties had compromised the case and the Plaintiff had agreed to give up his claim, the suit be dismissed in the terms of the compromise, The trial Court being of the view that the compromise deed was unregistered and it' could not be admitted in evidence, decided the lease on merits and passed a decree in Plaintiff's favour. -' The Defendants' appeal to the District judge was also dismissed. But on further appeal, the High Court set aside the judgments and decrees of the Courts below and holding that the compromise deed was not compulsorily register able remanded the case for decision of the Defendants' application;

(3.) THE next question to be determined is whether the Appellant could prefer a second appeal to' this Court against the order of the District Judge by which his appeal under Order 43, Rule 1 was dismissed and whether this appeal is an appeal from a decree. It is clear that Order 43, Rule 1(m) has no applicability for the simple reason that the District Judge's order is not an order recording or reusing to record the compromise. No second appeal from an order refusing to interfere in an appeal under Order 43, Rule 1(m) is provided. Our attention has been drawn to the fact that a regular decree was drawn up by the District Judge, but this was obviously an erroneous procedure because the order by which the District Judge dismissed the appeal did not amount to a decree and my view is that when a Court draws up a decree which is not warranted by law this does not give the aggrieved party a right of preferring a -regular appeal when no such appeal lies otherwise. Nor do I think the present appeal could be Warded as an appeal from the decree. The counsel who put in the appeal treated it as a miscellaneous appeal and it was for this reason that he paid court -fee of Rs. 4/ -. Even a miscellaneous second appeal was not competent and! the only remedy open to the Appellant against the order of the District judge dismissing his 'appeal in that Court was by way of a revision petition.