(1.) This is an appeal against an order recording a compromise.
(2.) A preliminary objection is taken that no appeal lies. It has been held in the case Onkar Bhagwan V/s. Gamna Lakhaji and Co. (1932) I.L.R. 57 Bom. 206 that in spite of the terms of Order 43, Rule (1)(m) no appeal lies against an order recording a compromise unless there was a contest before the Court at the time when the compromise was recorded, the reasoning being that if the compromise was recorded by consent, that consent order itself is practically tantamount to a consent decree which is not appealable with reference to Section 96(3) of the Civil Procedure Code. With very great respect I must say that I find some difficulty in accepting the view laid down by the learned Judges who decided that case. Order 43, Rule (1) (m) gives a right of appeal against an order recording a compromise without any restriction as to the nature of that order, whether passed after contest or without contest. To assume that the order is in fact a consent order because there was no contest is to assume that the appeal has no substance; but even if so much is assumed, the decree is something separate from the order and when the Code provides for a right of appeal against the order I do not see how that right of appeal can be taken away merely because the order would in the nature of events be followed by an unappealable decree. Nor am I impressed by the contention that if there is no contest before the lower Courts there are no materials upon which an appeal may be based. It is conceivable that as in the present case an application might be made to admit additional evidence in appeal which, if admitted, would furnish materials which were not available in the lower Court; and if in fact there are no materials, then the process of deciding the appeal is considerably simplified. But I do not see how aright of appeal conferred by Statute is taken away by the mere absence of materials for argument. So far as I am aware this Bombay decision has not been followed or dissented from by any decision of this Court.
(3.) There is a further objection that according to the decision in Alamelu Ammal V/s. Rama Aiyar there is no appeal against an order recording a compromise which has ripened into a decree if no appeal is filed against the decree itself. This decision conflicts with the decision of another Bench in an earlier case reported in Govindasami V/s. Kaliaperumal (1920) 16 L.W. 155 and there is a subsequent decision of a single Judge. Satyanarayanamoorthi V/s. Butchayya (1924) 48 M.L.J. 249 which follows Govindasami V/s. Kaliaperumal (1924) 48 M.L.J. 249 and dissents from that reported in Alamelu Ammal V/s. Rama Aiyar . It seems to me therefore that the balance of authority in this Court is in favour of the view that an appeal does lie against the order even when a decree has been passed in terms of the compromise.