Thottathil B. Radhakrishnan, J.

The 5th defendant in a suit for recovery of possession on the strength of title is the appellant. When the suit came for trail in the special list on 2.3.2009, the parties to the suit filed a compromise petition as I.A.No.324 of 2009, all of them and their respective Advocates signing that.

2. Thereafter, the appealing 5th defendant filed I.A.No.375 of 2009 on 11.3.2009 seeking that the compromise arrived at between the parties to the suit and stated in the compromise petition dated 2.3.2009 “be not recorded”. The plea in the affidavit accompanying that petition was that the 5th defendant had entered into the compromise after he was made to believe that both the permanent structures stated to be standing in plaint A schedule property, going by the Commissioner’s report, would be allotted to the defendants, however that the compromise petition proceeds as if there is only one permanent structure in plaint A schedule property. He further pleaded that the compromise arrived at between the parties was that both the permanent structures in plaint A schedule, as stated in the Commissioner’s report, would be allotted to the defendants including him and it was only later that he understood the honey trap laid by the other parties. He, accordingly, alleged that the compromise petition dated 2.3.2009 is vitiated by mistake, misunderstanding, fraud and misrepresentation. He further alleged that the factum and validity of that compromise petition is seriously disputed and the said compromise petition does not have any legal binding effect. He pleaded that his signature in the compromise petition cannot be said to be exercised out of his free will as, if he was aware of the mischief in the present petition, he would not have affixed his signature in the said petition. He stated in his affidavit that “at the time of signing the compromise petition also. I had pointed out the said fact. I was made to believe that a correction petition will be filed to correct the error which happened while mentioning the permanent structure which are to be included in the plaint A schedule property which was be allotted to the defendants including me”.

3. We notice that the aforesaid affidavit of the 5th defendant is sworn to on 11.3.2009 before Adv. Sri K.V. Binod and the petition I.A.No.375 of 2009 is also signed by Adv. Sri. K.V. Binod, who was appearing for him and had also signed the compromise petition as his Advocate. We find that thereafter there is a change in engagement and Adv. Sri. K.V. Binod did not continue to appear for the 5th defendant.

4. Objections were filed by the contesting plaintiffs and other defendants. All of them stood by the compromise.

5. The appealing 5th defendant gave evidence before the court below.

6. On the basis of the materials, the court below concluded that there is no reason to refuse to record the compromise. Consequently, the suit has been decreed recording the compromise. This appeal is filed against that. In effect, the compromise decree is under challenge including the decision of the court below to record the compromise.

7. The learned counsel for the appellant argued that the compromise not having recorded till the appellant’s application, essentially resiling from the compromise, was filed, it was the bounden duty of the court below, in terms of O.XXIII R.3 of the Code of Civil Procedure, to enquire as to the sustainability of the compromise, including as to whether it is vitiated by fraud, misrepresentation, mistake of fact etc. He further argued that before a compromise is recorded by the court, it does not get any statutory flair, but remains only as a proposal of the parties that could get the sanction of court by the order recording the compromise and therefore, until then, it remains only as something that can be recalled or withdrawn. In support, the decision of this Court in Gopala Menon v. Sivarama Menon (1967 KLT 790) is relied on. Proceeding further, it is a