GHANSI Vs. NARENDA KUMAR JAIN

JUDGEMENT

(1.) By way of this appeal, Appellant-defendant No. 1 has assailed the order dtd. 30/1/2018 whereby and whereunder the Court of Additional District and Sessions Judge No. 19, (Head-quarter Sanganer), Jaipur Metropolitan, decreed the Civil Suit No. 93/2017 according to the compromise and a decree for specific performance was passed in favour of respondent No. 1/plaintiff and against the appellant and respondent No. 2 (defendant Nos. 1 and 2).

(2.) Learned counsel for the appellant submits that though as per Sec. 96(3) CPC, no appeal shall lie from the decree passed by the court with consent of parties, however, the legislature has added provision of Order 43 Rule 1/A w.e.f 1/2/1974 in the Code of Civil Procedure and as per this provision, appellant is entitled to challenge the impugned decree passed on the basis of a compromise on the ground that the compromise should or should not have been recorded. Counsel for the appellant contends that the compromise is not lawful and further fraud has been played with the appellant by the respondents (plaintiff and defendant No. 2). Respondents were in connivance against the appellant and have succeeded in procuring the decree dtd. 30/1/2018, on the basis of compromise. The compromise and the order passed on the basis of compromise deed are illegal and contrary to law and also suffer by fraud and not acceptable to appellant.

(3.) Learned counsel for the appellant contends that the appellant could have also challenged the compromise before the trial court by virtue of proviso of Order 23 Rule 3 but appellant has a right to assail the compromise order by way of appeal also. The appellant has opted the remedy of appeal which should be entertained, heard and decided on merits. In support of his contentions, learned counsel for the appellant has placed reliance on the judgment of the Supreme Court delivered in case of Banwari Lal v. Smt. Chando Devi [(1993) 1 SCC 581].