T. RAVINDRAN, J.

1. Challenge in this Second Appeal is made to the judgment and decree dated 30.11.1999 passed in A.S. No. 79 of 1997 on the file of II Additional District and Sessions Judge/Chief Judicial Magistrate's Court, Krishnagiri reversing the judgment and decree dated 16.08.1995 passed in O.S. No. 399 of 1990 on the file of District Munsif Court Krishnagiri.

2. The second appeal has been admitted on the following substantial questions of law.

(i) Whether the decree passed by the Lower Appellate Court is sustainable on the face of mandatory provisions as adumbrated in Order 23 Rule 3 of CPC is not complied with?

(ii) Whether the decree passed by the Lower Appellate Court is sustainable since the same has been made without complying with the mandatory provisions of Order 23 Rule 3B of CPC?

3. Considering the scope of issue involved in this Second Appeal lying in a narrow compass, it is not necessary to dwell into facts of the case in detail. The suit has come to be laid by the plaintiff for declaration, permanent injunction and mandatory injunction. The said suit laid by the plaintiff has been resisted by the defendants on various grounds. Based on the materials projected by the respective parties, it is found that the suit has come to be dismissed by the trial court. Aggrieved over the same, it is found that the plaintiff has preferred the first appeal. It appears that in the first appellate court, a memo of compromise had been filed on behalf of the plaintiff and the defendants and based on the abovesaid memo of compromise, the first appellate court had disposed of the first appeal in terms thereof. Aggrieved over the same, the present second appeal has been preferred.

4. The main contention projected by the appellants' counsel is that the judgment and decree of the first appellate court based on the memo of compromise is not in consonance with the provisions contained in Order 23 Rule 3 and Rule 3B of the Code of Civil Procedure and therefore the judgment and decree of the first appellate court are liable to be set-aside.

Order 23 Rule 3 of the Code of Civil Procedure reads as follows:

Compromise of suit: Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties] or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit].

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question, but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation - An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.

Order 23 Rule 3B of the Code of Civil Procedure reads as follows:

No agreement or compromise to be entered in a representative suit without leave of Court:

(1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings: and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

Explanation: In this Rule, representative suit means:

(a) a suit under section 91 or section 92.

(b) a suit under rule 8 of Order-I.

(c) a suit in which the manager of an un