GUIMONI DASI Vs. TARINI CHARAN POREL

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of the plaintiff's title to certain lands and for recovery of possession. During the pendency of the suit, a composition was arrived at between the parties in criminal proceedings pending between them, relating apparently, to the same lands. The parties agreed to refer the matter in dispute to the arbitration of the zemindar. When the zamindar gave his award, the defendant, in whose favour the award was made, filed it in Court and prayed that a decree be passed in accordance therewith. The plaintiff refused to abide by the award, making various allegations against the zemindar. The learned Munsif who tried the suit held that the award was an adjustment of the matters in dispute within the meaning of Rule 3, Order 23, Civil P.C., and he passed a decree in accordance with this award.

(2.) On appeal this decision was reversed on the ground that the above finding on the question of law was erroneous. The learned Subordinate Judge who heard the appeal remanded the suit for trial on the merits. The defendant has appealed to this Court.

(3.) A preliminary objection is taken on behalf of the respondent that no second appeal lies. This objection is based on Sub-section (3), Section 96, of the Code which provides that no appeal shall lie from a decree passed by the Court with the consent of parties. In the present case, the learned Court of appeal below has held that consent of parties did not exist, and has granted no decree. The objection, threfore, is not maintainable.