SUNDER SINGH Vs. THAKURA SINGH

JUDGEMENT

(1.) This petition for revision arises in these circumstances. One Amar Singh filed a suit for dissolution of partnership and rendition of accounts regarding a brick-kiln impleading Sunder Singh, Gurbachan Singh, Thakura Singh and Bachan Singh as defendants. A preliminary decree was passed on 12th December, 1955. A Commissioner was appointed for going into the accounts of the parties. Objections were invited to report and the Court proceeded to enquire into those objections. It is stated that according to the Commissioner's report, Sunder Singh was held entitled to Rs. 2,600/- odd, Bachan Singh to Rs. 6,500/- odd and Amar Singh to Rs. 1,700/- odd from Thakura Singh and Gurbachan Singh whose liability was joint and several. On 28th June, 1961, however, a compromise was recorded. Thakura Singh, Gurbachan Singh and Amar Singh signed the statement recorded by the Court which was also signed by Ram Joginder Rai, Sewa Singh, Babu Ram and Sapuran Lal Advocates. It is alleged that Sapuran Lal was counsel for Sunder Singh and Ram Joginder Rai was counsel for Bachan Singh, although this is being denied now by Sunder Singh and Bachan Singh. An appeal was taken by Sunder Singh and Bachan Singh against the order recording the compromise under Order XLIII, rule 1 of the Civil Procedure Code. The lower appellate Court has said in its order.

(2.) It has been contended on behalf of Sunder Singh and Bachan Singh, who are the petitioners before me, that the lower appellate Court refused to exercise jurisdiction in declining to entertain the appeal in as much an appeal lay against an order recording a compromise under Order XLIII, rule 1. A good deal of criticism has been suggested with regard to the order of the lower appellate Court which has been set out above. It is contended that the case of the petitioners was that they were never parties to the compromise and that the counsel who singed did not have any power of attorney from them to act for them, nor had they been authorised to enter into any such compromise. This matter, it is said, could be investigated and ought to have been determined by the lower appellate Court. I have not been able to fully appreciate the reasoning of the lower appellate Court in the paragraph reproduced before but the real difficulty in the way of the petitioners is that according to a Bench decision of this Court in Amarnath Radha Ram V/s. Smt. Malan, 1954 AIR(P&H) 259, an appeal would be entertainable only under Order XLIII, rule 1(m) if there has been a contest between the parties in the trial Court regarding whether the parties had settled their differences, and if a compromise has been recorded without any such contest, the proper remedy of the aggrieved party is to approach the Court and allege that the compromise had not in fact, been entered into and if the Court then refuses to take any action and maintains its order regarding the compromise, the only remedy to the party concerned is to challenge that compromise by means of a suit. The Bench followed the decision of the Bombay Court in Onkar Bhagwan V/s. Gamna Lakhaji and Co., 1933 AIR(Bom) 205 . The learned counsel for the petitioners contends that the Bench decision of our Court does not take notice of a Bench decision of the Lahore High Court in Fateh Din V/s. Bal Mukand, 1936 AIR(Lah) 963 and that the Bombay case on which reliance was placed could no longer be regarded as laying down good law owing to the observations contained in Umashankar Naranji Shivashankar Prabhashankar,1944 AIR(Bom) 239. It is also said that the observations made in Amarnath Radha Ram's case on this point were merely orbiter.

(3.) Now, so far as the decision in Fateh Din V/s. Bal Mukand, 1936 AIR(Lah) 963 is concerned, the question really was as to what was the proper procedure to follow when a compromise had to be recorded and it was held that the correct thing to do was to make a separate order regarding the compromise and then to pass a decree in accordance with it. In such a case no appeal would lie against a decree but an appeal would lie against the order recording the compromise and a petition for revision would lie to the High Court against the appellate order. It is, therefore, quite clear that the point which has been decided by the Division Bench of our Court in Amarnath Radha Ram's case, which certainly is not orbiter, did not come up for consideration by the Lahore Court in the aforesaid decision. As regards the observations made in Umashankar Naranji Shivashankar Prabhashankar,1944 AIR(Bom) 239 with regard to the decision in Onkar Bhagwan V/s. Gamna Lakhaji and Co., 1933 AIR(Bom) 205 it cannot be said that the view expressed in the previous decision was regarded as orbiter on the question as to when an appeal would be entertainable against an order recording a compromise, the ratio of the previous decision being that such an appeal would lie only if there had been any contest before the first Court relating to the compromise. The question which came up for consideration in the later Bombay case was somewhat different and what was actually held was that when a decree had been passed after an order had been made recording a compromise the appeal lay against the order and not against the decree. In Onkar Bhagwan V/s. Gamna Lakhaji and Co., 1933 AIR(Bom) 205 what prevailed with the learned Judges was that if there was no contest before the Court which recorded the compromise on the point which was sought to be agitated in the appeal, the appellate Court was clearly at a disadvantage there being no evidence on which to base a decision. Falshaw, J. (as he then was) delivering the judgment of the Bench in Amarnath Radha Ram's case felt that it was implicit in the provisions of Order XLIII, rule 1(m) that an appealable order must be one in which there had been a contest between the parties in the trial Court regarding whether the parties had settled their differences.