Suit dismissed in view of adjustment pleaded.

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 appellate Court that the appeal before it was maintainable is erroneous. He urges that as the compromise was found proved in the application under Order 23, rule 3, Civil Procedure Code, the basis of the decree dismissing the suit was really the compromise so proved ; and that for purposes of section 96 (3) it did not make any difference that the consent to the compromise was given not at the time when the decree was passed by the trial Court, but earlier. In support of his contention the learned counsel has relied on the decision in Govindaswami v. Kaliaperumal1. On the other hand, Sri K. S. Desikan, the learned counsel for the respondent, relies on the decision in Ayyagiri Veerasalingam v. Koovur Basivi Reddi2and contends that a decree passed on the basis of an independent order recognising a compromise, cannot be said to be a decree passed by the Court with the consent of the parties. Sri Desikan has stressed that in this case the plaintiff as a matter of fact denied he ever gave his consent to any compromise and that whether there was a compromise or not was itself the issue in the application of the defendant under Order 23, rule 3, Civil Procedure Code. When there was a protest on the part of the plaintiff that he ever gave his consent, so ran the argument, the decree cannot be said to have been passed with the consent of the parties.

In Ayyagiri Veerasalingam v. Koovur Basivi Reddi2 the material facts were more or less similar to those in the present case. In that case there was an order made under Order 23, rule 3, Civil Procedure Code recognising a compromise. On the foot of that order a decree followed in the suit. An objection was taken to the maintainability of the appeal against the decree on the ground that it was one passed with the consent of the parties within the meaning of section 96 (3), Civil Procedure Code. In repelling the objection, Sadavisa Ayyar, J. and Tyabji, J., held that the decree itself was not one passed with the consent of parties but the Court having found earlier that there was consent of the parties to the terms of the compromise agreement which was recorded, it passed a decree in accordance therewith, notwithstanding the objection of one of the parties. In other words the learned Judges considered that the fact that consent for the terms of the compromise had been found to be true on an application under Order 23, rule 3, Civil Procedure Code was not the same as a consent to a decree being passed in the suit. If this view is to be followed, the objection to the maintainability of the appeal in the lower appellate Court has got to be overruled. But then on almost similar facts the learned Judges in Govindaswami v. Kaliaperumal1, reached a diametrically opposite conclusion on the maintainability of the appeal. One