SHEOSAGAR SINGH Vs. SITARAM KUMHAR

JUDGEMENT

(1.) This is an appeal by the plaintiff who had brought a suit for recovery of Rs. 513/- and odd on the basis of a hand-note against respondents 1 and 2, respondent No. 2, brother of respondent No. 1, was a minor then. The trial Court dismissed the suit with costs and the appellant (the plaintiff) preferred an appeal to the District Judge which was numbered as Money Appeal No. 5 of 1947. Respondent No. 2, who was respondent No. 1 in the said money appeal, was described in the memorandum of appeal as being under the guardianship of one Babu Gajadhar Prasad, Pleader guardian appointed by Court. It appears that this guardian was appointed in the Court of first instance. Notices of the appeal were served upon the respondents and the hearing of the appeal was postponed from time to time and ultimately the 20th of February 1948, was fixed for the hearing of the appeal. On the 18th of February, 1948, however, the order-sheet records the following order:

(2.) On the 16th of March 1948, the present respondent No. 1, Sitaram Kumhar, who was respondent No. 2, in the said money appeal, filed an application under Section 151, of the Code of Civil Procedure in the money appeal for setting aside the compromise decree, which, according to him had been obtained by fraud. It is alleged in his petition that the plaintiff-appellant had represented, to him that he would withdraw the appeal, provided the respondent remitted his costs, and that the plaintiff-appellant had obtained his thumb impression on blank papers and blank printed Vakalatnama saying that the petition for withdrawing the appeal had to be filed through another Pleader. It was asserted by the respondent No. 1 that the blank paper bearing his thumb mark was utilised for the compromise petition, leading to the consent decree. It was further alleged that the respondent No. 1, came to know of this fact on the 26th February 1948, when the appellant threatened him with realisation of the decree in the money suit. The plaintiff-appellant objected to the decree being set aside and alleged that the compromise was a 'bona fide' one and there was no fraud committed by him. The Court below started miscellaneous Case No. 21 of 1948, under Section 151 of the Code of Civil Procedure and after hearing the parties came to the conclusion that fraud had been perpetrated in the matter of compromise and that the respondent No. 1 had never consented and could not have consented to the terms embodied in the petition of compromise. In that view of the matter, the Court below allowed the application under Section 151 of the Code, set aside the order of that Court, dated the 20th of February 1948, rejected the petitions filed on the 18th of February, 1948, and has restored the money appeal to its original file and number. The plaintiff-appellant having felt aggrieved has filed the present appeal.

(3.) A preliminary point has been raised that no appeal lay against an order passed under Section 151 of the Code of Civil Procedure. The learned Counsel for the appellant has argued that the effect of the order under appeal is that the Court below has refused to record the compromise and is such an appeal is competent under Order 43, Rule 1, Sub-clause (m), Civil P. C, The right of appeal is given by statute and it is obvious that an order passed under Section 151 of the Code of Civil Procedure is not appealable. The order appealed against however, shows that the petitions filed on the 18th of February 1948, have been rejected and one of these petitions was the petition filed by the parties embodying the terms of the compromise with a prayer that a decree be passed in favour of the plaintiff-appellant and that the appeal be allowed in terms of the compromise. By rejecting that petition, the Court below has refused to record the compromise under Order 23, Rule 3 of the Code and, therefore, in that view of the matter me order is appealable under Order 43, Rule 1, Sub-clause (m) of the Code.