RAMDUTT KISHANDAYAL Vs. MT. BASANTIBAI

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. On the basis of a promissory note the applicant defendant was sued by the non-applicant plaintiff in the Court of Second Class Subordinate Judge No. 4, Akola. During the pendency of the suit it was alleged that the matter was compromised and a decree in terms of Order 23, Rule 3, Civil P.C. was asked for. After investigation the trial Court, however, held that no compromise was made and proceeded with the trial of the case in the ordinary way. The defendant preferred an appeal against the finding that no compromise was proved but the First Additional District Judge, Akola, rejected the appeal holding that no appeal lay from such an order under Order 43, Rule 1 (m), Civil P.C. It is against this order that the present application for revision has been filed.

(2.) IT is contended that the wording of Order 43, Rule 1(m) is clear and that a finding that no compromise is effected would fall within its purview. The view expressed in the case of Shanti Sarup v. Jahangir A.I.R. 1924 Lah. 248 on which the lower appellate Court relied appears not to have been followed by the same Court in a later case of Kishore Chand v. Hans Raj A.I.R. 1928 Lah. 89 wherein it was held that all orders refusing to record a compromise under Order 23, Rule 3, would be appealable whatever the reasons for refusal may be, This view appears to be in consonance with common sense and can also come within the purview of the wording of Order 43, Rule 1 (m), Civil P.C. If an appeal is permissible to a party who is aggrieved by an order recording a compromise, whatever the reasons behind the order may be it is but just that similar remedy should be available to a party aggrieved by the order refusing to record a compromise. I, therefore, allow this application for revision, set aside the order of the lower appellate Court and remand the appeal to that Court for disposal on merits. Pleader's fee in this Court Rs. 25. Costs in this Court shall abide the result.