A party can challenge the validity of a compromise in an appeal against a decree passed after recording a compromise under Order 43, Rule 1-A(2) of the Code of Civil Procedure, 1908, even though Section 96(3) of the Code of Civil Procedure, 1908 bars an appeal against a decree passed with the consent of the parties.

PASAYAT, J.

( 1 ) A pointt regarding maintainabilitty of the appeal has been raised on the ground that the appeal is incompetent in view of the bar imposed under Section 96 (3) of the Code of Civil Procedure, 1908 (in short, the 'code' ). The learned counsel for parties were heard at length on the question.

( 2 ) THE factual position is almost undisputed, and noted in brief is as follows :a suit was filed by the appellant as plaintiff for partition by metes and bounds. Same was numbered as O. S. No. 29 of 1990, Class I in the Court of Subordinate Judge, Balasore, (as the Court was designated then ). Respondents 1 and 2 are mother and brother of the appellant respectively, who were defendants in the suit. On 26-3-1990 a petition for compromise was filed which was read over and explained to the parties and was admitted. The learned subordinate Judge recorded the compromise, and decreed the suit finally in terms of the compromise petition being of the view that the petition for compromise was lawfully recorded. The decree was finally drawn on 28-3-1995.

( 3 ) IN this appeal challenge is made to the compromise on the ground that valuable properties were allotted to the share of defendants. The appellant acted in good faith while entering into the compromise, and there has been unequal partition and improper allotment of share. It is also alleged that the compromise is bad due to improper valuation and non-allotment of legitimate share.

( 4 ) MISS Mira Ghose, learned counsel for appellant submitted that Section 96 (3) of the Code does not put an absolute bar as would be evident from a bare reading of Order 43, Rule 1-A of the Code, which deals with right to challenge non-appealable orders in appeal against decrees. Strong reliance has also been placed on a decision of the Apex Court in Banwari Lal v. Smt. Chando Devi (through L. R.); AIR 1993 SC 1139; and a decision rendered by a learned Single Judge of this Court in Hakimatun Nisa Bibi v. Md. Fakiruddin Khan (1993) 75 Cut LT 457, to contend that the appeal is competent and is maintainable. Mr. A. K. Mahakud, learned counsel appearing for respondent No. 2 submitted that the appeal is not maintainable as ratio of the aforesaid two decisions does not apply to the facts of the present case.

( 5 ) IN order to appreciate the rival submissions, it is necessary to take note of a few provisions. Section 96 (3), and Order 43, Rule 1-A read as follows :"96. Appeal from orginal decree. (1) and (2) xx xx xx (3) No appeal shall lie from a decree passed by the Court with the consent of parties. ""43. 1. xx xx xx1-A. Right to challenge non-appealable orders in appeal against decrees. Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. "

( 6 ) THE experience of the courts has been that on many occasions parties having filed petitions of compromise on basis of which decrees are prepared later for one reason or other challenge the validity of such compromise. For setting aside such decrees suits used to be filed which dragged on for years including appeals to different Courts, Keeping in view the predicament of the Courts and the public, several amendments have been introduced in Order 23 of the Code which contain provisions relating to withdrawal and adjustment of suit, by Civil Procedure Code (Amendment) Act, 1976. Rule 1 of Order 23 of the Code prescribes that at any time after the institution of the suit, the plaintiff may abandon his suit or abandon a part of his claim. Rule 1 (3) provides that where the Court