GANGA RAM SAHU Vs. RAM SHANKAR TIWARI

JUDGEMENT

(1.) THIS is a defendant's application in revision against the order of the lower appellate Court under the following circumstances: A pre-emption suit was brought by the plaintiff opposite party on the basis of a sale-deed in which the sale consideration had been entered as Rs. 3,500. The plaintiff brought the suit for pre- emption on the allegation that the real sale consideration was Rs. 1,250. The plaintiff made an application to the trial Court that a compromise had been arrived at between the parties under which it was settled that Rs. 2,000 was the sale price. An inquiry was made by the trial Court and it found that no compromise had been arrived at and rejected the plaintiff's application for recording the compromise and passing a decree in accordance therewith. The plaintiff went up in appeal and the lower appellate Court found that a compromise had been arrived at between the parties and decreed the suit in accordance therewith. Against this order of the lower appellate Court the defendant has come up in revision. The only objection raised by the learned Counsel on behalf of the applicant is that no appeal lay against the order of the trial Court rejecting the application of the plaintiff to record the compromise and pass a decree in accordance with it. Order 43, Clause (m) provides for an appeal from an order under Rule 3, Order 23 recording or refusing to record an agreement, compromise or satisfaction. Order 23, Rule 3, provides: Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.

(2.) UNDER this rule, if it is proved to the satisfaction of the Court that the compromise has been made or the suit has been adjusted otherwise, the Court is bound to record the same and pass a decree in accordance therewith. The rule does not give any discretion to the Court not to record the compromise and pass a decree in accordance with it even if it be proved to its satisfaction that the compromise has been made or the suit has been wholly or in part adjusted otherwise. In Clause (m) Order 43 the words "refusing to record an agreement, compromise or satisfaction" are comprehensive and wide enough to cover the case in which the trial Court comes to a finding that no compromise, agreement or satisfaction has been made and therefore refuses to record the same and pass a decree in accordance with it. We are therefore of the opinion that Clause (m) does provide for an appeal in a case in which the trial Court finds that no compromise has been made and refuses to record it on that ground. There was therefore no illegality in the appeal. It is therefore ordered that the application be dismissed with costs.