An agreement between parties to abide by the decision of the court does not necessarily imply a waiver of the right to appeal unless the agreement expressly states so or there is a necessary implication to that effect.

( 1 ) THIS Second Appeal arises out of a suit filed in the Court of the district Munsif of Guntur for a mandatory injunction directing the defendants to remove certain bunds put up by them and for a permanent injunction restraining them from obstructing the flow of surplus water from plaintiff s land. The defendants resisted the suit on various grounds. A commissioner was appointed to inspect the locality and he prepared certain plans and submitted his reports. Before the the trial began, the parties signed and filed a memorandum in Court in the following terms : "both parties agreed to abide by the decision of the hon ble Court after personal inspection. The parties are not adducing oral evidence. Documentary evidence can be received. "

( 2 ) THE District Munsif inspected the locality and placed on record a detailed note of the physical features of the locality, the height and length of the bunds and other relevant matters. On the basis of the commissioner s plans and reports and his own personal inspection, the District Munsif gave judgment for the plaintiffs. A decree was also drawn up in the usual course. Against the decree, the first defendant preferred an appeal, but the appeal was rejected by the lower appellate Court on the ground that it was incompetent. The question in this second Appeal is whether the lower appellate Court was right in holding that, in the circumstances of the case, no appeal lay to it, from the decree of the trial Court.

( 3 ) LEARNED counsel for the appellant and the respondent each cited a decision of the Madras High Court as supporting his contention. Before considering the decisions cited as well as others, I should like to refer to certain general principles and the relevant statutory provisions. Section 96, Civil Procedure Code, provides a right of appeal from the decree of a Court exercising original jurisdiction, "save where otherwise expressly provided in the body of this code or by any other law for the time being in force ".

( 4 ) SECTION 96 (3) provides that no appeal shall lie from a decree passed with the consent of parties. In some of the decided cases, decisions of the kind now in question have been treated as consent decrees or orders. In my opinion, however, this is not a correct view to take. Order 23, rule 3, Civil Procedure code, provides the procedure to be followed in passing consent decrees. It has been ruled by the Judicial Committee that when a decree is passed by consent of parties it should always so appear on the face of the decree when drawn up. Vide Zakir-ul-Said v. Lachmi Narayain (1931) 60 M. L. J. 648 : 35 C. W. N. 612 (P. C. ). Where both parties to a suit ask the Court to pass a decree in accordance with a lawful compromise arrived at between them, the Court has no discretion but only a duty to record the compromise and pass a consent decree. Vide Surendranath v. Tarabala (1929) 58 M. L. J. 551 : L. R. 57 I. A. 133 : i. L. R. 57 Cal. 1311 (P. C. ). . Since a consent decree merely embodies the terms of the contract between the parties and is a mere creature of the agreement on which it is founded, a right of appeal from this decree is not given. In the present case, the terms of the decree were not agreed to by the parties but were imposed upon them by the Court and the Court did not and could not have acted under Order 23, rule 3, Civil Procedure Code, when passing the decree. Section 96 (3), Civil Procedure Code, does not therefore debar an appeal in this case.

( 5 ) THE view has been taken in some cases that the decision of the Court in a case like the present is in the nature of an award of an arbitrator and is therefore not open to appeal. In Nidamarthi Mukkanti v. Thammanna Ramayya, (1902) I. L. R. 26 Mad. 76. where the facts were similar to the present case, the learned Judges held that the District Munsif acted as an arbitrator by consent of parties and consequently no appeal lay from his decision which must be treated as an award. The Court held that the

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