ONKAR BHAGWAN Vs. GAMNA LAKHAJI AND CO

JUDGEMENT

(1.) This is an appeal against an order made under Order XXIII, Rule 3, of the Civil Procedure Code. In the course of a suit in the Court of the First Class Subordinate Judge, Poona, an application was put in purporting to be signed by all the parties to the suit, the applicants being represented by their pleader and a mukhtyar. The application was to the effect that the dispute between the parties had been compromised, and requested the Court to pass a decree in terms of the compromise. The Court's order was "Granted. Decree accordingly." Strictly speaking, the learned Judge should have made an order recording the compromise and then passed a decree in its terms. But the actual words used are, more or less, a formality, and I think that the word "Granted" means the same thing. A decree was accordingly passed.

(2.) Thereupon, the applicants came to this Court challenging the decree On the ground that it had not been a compromise with the consent and authority of the defendants, i.e., the applicants, and contending that the Court below should have held that the mukhtyar had no authority to compromise the suit, putting him to strict proof of his authority, and similarly in the case of the pleader, who represented applicants in that Court. An affidavit has been filed in this Court making these allegations and challenging the propriety of the order recording the compromise in the Court below.

(3.) Mr. Thakor for the respondents has raised a preliminary objection, and his contention is that no appeal lies against an order of this nature. He has relied on the decision of a bench of this Court in an unreported case, Gulabchand V/s. Ramsukh. In that matter, it was held by the learned Chief Justice, in deciding such a preliminary point, that no appeal lay, his reasons being :- An appeal from a decree passed by the Court with the consent of parties is barred by Section 96, Sub-section (3). The appellant urges that the Court has passed an order under Order XXIII, Rule 3, and that an appeal lies under Order XLIII, Rule 1, Clause (m), from such an order. But in this case there was no question whether an agreement had been arrived at, the terms were signed by the parties and all that the Court had to do was to pass a decree according to the terms to which the parties had agreed. There was no adjudication, therefore, on the question whether a lawful agreement had been arrived at, because it was never disputed that the parties before the Court had come to an agreement. It was open to any of the parties before the decree was passed to contend that a lawful agreement had not been arrived at. Under these circumstances we think that no appeal is competent. There are other remedies open to the appellant if he thinks fit to pursue them.