NAMBURI SURAPARAJU Vs. NULU VENKATARATHNAM

JUDGEMENT

(1.) The appellant in this civil miscellaneous appeal, who also files a civil revision petition on the same grounds, brought a suit for money against the respondent. The suit underwent many adjournments, several of them being with a view to settlement and the others being at the request of the defendant through his pleader. On 18 January 1933 the plaintiff filed a petition praying that the suit be advanced and a decree recorded in terms of the compromise which was put before the Court supported by an affidavit from the plaintiff, which recites that the compromise was signed by himself and the defendant and embodied the terms of an agreement for settlement of the litigation. The pleader appearing for the defendant represented that he had no instructions regarding this compromise, and at his request the matter was adjourned to 2 February, to which date the suit also was posted. It is seen from the Subordinate Judge's judgment that the defendant is a resident of Amalapur where the suit was being tried and where the vakil himself resides. The pleader should not therefore have had any particular difficulty in getting instructions from his client during the fortnight which intervened between the filing of the compromise petition and the date to which the suit was posted. Moreover, the defendant was under notice that his presence would be required in connexion with the suit on 2nd February. On that date, however, the defendant did not appear and his pleader stated that he did not know why the defendant did not appear. There was nothing to indicate that the compromise petition was denied by or on behalf of the defendant, and there is nothing in the judgment of the learned District Munsif to indicate that the pleader applied for any further adjournment. The District Munsif after reciting the facts regarding the previous adjournments observes: In this state of things the suit should be decreed as prayed for, but I decree the suit in terms of the compromise petition which provides for some concession to the defendant in the matter of costs.

(2.) Against this order the defendant filed an appeal which was drafted as a Civil miscellaneous appeal against an order recording a compromise. The learned Subordinate Judge allowed the appeal and remanded the petition to the lower Court in order, "to give the defendant an opportunity", not stating for what purpose the opportunity was given. Against this order the civil miscellaneous appeal and the civil revision petition have been filed. A preliminary contention has been raised that no civil miscellaneous appeal lies with reference to the terms of Section 104(1), Clause (i) and Section 104(2), Civil P.C. the appeal being against an appellate order passed under Order 43, Rule 1(m). It is contended for the appellant that the decree of the trial Court is not really a decree in terms of the compromise but an ex parte decree, and that the appeal before the lower appellate Court was not really an appeal against an order recording a compromise but an appeal against an ex parte decree. In support of this contention the appellant relies upon an order in execution passed by the learned District Munsif himself, in which he interprets his own judgment as nothing more than an order for an ex parte decree even though it was expressly passed in terms of the compromise. I find myself unable to follow the subtleties of the learned District Munsif's reasoning. It seems to me quite clear that the learned District Munsif did in fact order a decree in terms of the compromise disallowing a portion of the costs when he might have ordered an ex parte decree for the amount claimed in the plaint with full costs. It follows therefore that no civil miscellaneous appeal to this Court would lie and that we must confine our attention to the civil revision petition. For the sake of convenience, however, I will continue to refer to the plaintiff as the appellant.

(3.) It has been argued for the appellant that no appeal lies against an order recording a compromise when there has been no dispute or contention before the trial Court as to the factum of the compromise and the compromise has resulted in what is really a consent decree, against which, with reference to the terms of Section 96(3), Civil P.C., there can be ordinarily no appeal. This argument is based on two Bombay decisions reported in Gulabchand Ramsukh V/s. Ramsukh Ram pratap 1926 Bom 39 and Onkar Bhagwan V/s. Ganna Lakhaji 1933 Bom 205. There is of course much to be said for the view taken by the learned Judges of the Bombay High Court in this matter. The Code provides for an appeal against an order recording a compromise, not for an appeal against a decree following from an order recording a compromise. It is arguable that the Code would not provide for an appeal against an uncontested order when a decree would follow automatically from that order. But the more forcible argument is that the Code cannot be read as giving what is in effect a right of appeal against a consent decree, against which no appeal lies with reference to the provisions of Section 96. I am, however, not aware of any Madras decision which has followed these decisions of the Bombay High Court and in the absence of authority in this High Court, I am inclined to the view that when the Code provides specifically for an appeal against an order recording a compromise without any restriction, such an appeal will lie, even though when there has been no dispute as to the factum of the compromise, the dismissal of the appeal would normally follow as a matter of course, there being no materials upon which the appellate Court can interfere.