JUDGMENT :

Hima Kohli, J.

1. The present appeal has been filed by the appellant (defendant No. 1 in CS (OS) 666/2008, instituted by the respondent No. 1/plaintiff), being aggrieved by an order dated 29.10.2018, passed by the learned Single Judge, dismissing an application moved by him under Section 94 CPC read with Order XXIII Rule 3A CPC, praying inter alia that the compromise arrived at between the parties as recorded on 12.4.2012, may be set aside.

2. By this order, we propose to dispose of the preliminary objection take by learned counsel for the respondents No. 1 and 2 to the maintainability of the present appeal, filed under Section 10 of the Delhi High Court Act, 1966 (in short, 'the Act').

3. Mr. Pradeep Dewan, learned Senior Advocate appearing for the respondent No. 1 contends that Section 10 of the Act cannot be invoked by the appellant/defendant No. 1 to assail the order dated 29.10.2018, passed by the learned Single Judge and if aggrieved by the settlement that was arrived at between the parties and recorded in the order dated 12.4.2012, the appellant had only two options. The first option was under the proviso appended to Order XXIII Rule 3 CPC and the other option is available under Order XLIII Rule 1A (2) that deals with the right to challenge non-appealable orders in appeal, against decrees. Learned counsel also cited Section 96(3) of the CPC which contemplates under what circumstances does an appeal lie from the original decree, to urge that the said provision makes it amply clear that no appeal shall lie from a decree passed by the Court with the consent of the parties and argued that in the instant case, the suit instituted by the respondent No. 1/plaintiff having been decreed in terms of a consent order, the present appeal is not maintainable. To substantiate his submission, reliance has been placed on the following decisions:-

(i) Banwari Lal vs. Smt. Chando Devi (Through LRs.) reported as 1993 (1) SCC 581;

(ii) Jaswinder Singh vs. Mrigendra Pritam Vikramsingh Stenier.

(iii) Govt. of NCT of Delhi & Ors. vs. Mool Chand Sharma, MANU/DE/0540/2013 : (2013) 135 DRJ 705 (DB).

4. Mr. Dewan, Senior Advocate thus concluded that the very same principles would apply to the application filed by the appellant for setting aside of the comprise decree, as would apply to a review application and just as on the dismissal of a review application, no right can vest on the review petitioner to file an appeal, similarly, on the dismissal of the application moved by the appellant herein, no appeal is maintainable.

5. On the other hand, Mr. Tanmay Mehta, learned counsel for the appellant asserted that the present appeal is maintainable and submitted that in fact no other legal remedy is available to the appellant who is aggrieved by the impugned order dated 29.10.2018, except for invoking the provisions of Section 10 of the Act. He pointed out that first the appellant had filed a suit [CS (OS) 185/2017] on the Original Side of this court, for declaration and injunction wherein he had prayed for cancellation of the MoU dated 15.9.2011, executed by the parties. However, the said suit was withdrawn by the appellant on 1.5.2017 due to lack of territorial jurisdiction. Thereafter, another suit was instituted by the appellant, registered as CS (OS) 337/2017, asking for permanent and mandatory injunction. The said suit was also withdrawn by him on 2.2.2018, with liberty sought to file an application under Order XXIII Rule 3A of the CPC or take any appropriate legal proceedings. On 18.7.2018, the appellant filed I.A. 9472/2018, under Order XXIII Rule 3A of the CPC in CS (OS) 666/2008, challenging the compromise decree dated 12.4.2012, which came to be dismissed by the impugned order.

6. It is the submission of learned counsel for the appellant that the impugned order though interlocutory in nature, has all the trapping of finality and ought to be treated as a judgment, as contemplated by the Supreme Court in Shah Babulal Khimji (supra). It has b