DAMODAR SAHA Vs. ASWINI KUMAR SAHA

JUDGEMENT

(1.) This is an appeal against an order of the lower Court directing that the plaintiff appellant's fuit be disposed of in terms of the draft solenama. A preliminary point has been raised that there having been no appeal against the decree the appeal against the order for the compromise to be recorded is incompetent. In support of this the case of Bengal Coal Co. v. Apcar Collieries Ltd., 1926 Cal 412, has-been relied on. On the other hand in the case of Provabati Debya V/s. Sarojini Devi, 1933 Cal 72, it has been held that an appeal lies, their Lordships holding that the decision in the former case is no longer good law in view of the Full Bench decision in Taleb Ali V/s. Abdul Aziz, 1929 Cal 689, in which it has been held that an appeal against a preliminary decree lies although there has been no appeal against the final decree. It is true that the Full Bench case distinctly refers to preliminary decrees and not to- interlocutory orders but the same principle applies in the case of an order Under Order 23, Rule 3, for the decree is involved in the order and indeed might be made at the same time, the wording of the Rule being that the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith.

(2.) When therefore Order 43, Rule 1, expressly lays down that an order Under Order 23, Rule 3 is appealable it would be obviously absurd to hold that the right of appeal is lost because the decree involved in the order has been passed. No doubt it would be more correct to appeal against the decree at the same time but in fact if the order is set aside the decree must go with it. The preliminary objection therefore fails.

(3.) On the merits it is clear from the order sheet that there was no concluded adjustment of the suit on 27 April 1932, when a draft petition of compromise was filed. On that date the parties applied for 15 days time to file the petition of compromise. The suit was then adjourned to 12 May 1932. On that date on a joint petition of the parties the case was adjourned to 26 May 1932 for hearing, the order being that the parties must file their petition of compromise in the meantime, otherwise they must come ready on the date fixed. On 26 May 1932, the plaintiff was ready to proceed with the suit but defendants put in a petition for enforcing the draft solenama. On the 28 the plaintiff put in an objection and on the 30 the Court passed the order for re-cording the compromise Under Order 33, Rule 3 against which this appeal has been filed. In the defendants petition of 26 May, para. 8, the defendants having offered alternative terms states: If the plaintiffs do not agree to the aforesaid settlement then according to the draft solenama these defendants are willing to sell the said land on stating the same to be in the benami of their mother; but if in consequence thereof the title of the said land be bad or if the plaintiff suffers any loss these defendants will not be liable In any way.