The substantial point in this Civil Miscellaneous Appeal is whether the appeal filed in the lower appellate Court was maintainable. Pending the suit for possession, the defendant-appellant filed an application under Order 23, rule 3 of the Code of Civil Procedure, for an order recognising an adjustment of the dispute out of Court. The plaintiff-respondent contested this application but eventually the application was ordered on a finding that the adjustment pleaded by the respondent was proved. In view of the order made in the application under Order 23, rule 3, Civil Procedure Code, the trial Court dismissed the suit. The respondent filed an appeal against the decree in the suit but not against the said order. The lower appellate Court overruled an objection and held that the appeal was maintainable on the view that the order accepting the petition to record the compromise and the dismissal of the suit were one and the same. The lower appellate Court then went into the other points and ultimately allowed the appeal remanding the suit for fresh trial on the merits.

Sri M. R. Narayanaswami, the learned counsel for the appellant, contends before me that the view of the lower