A consent decree passed by a court with the consent of the parties is not appealable under Section 96(3) of the Civil Procedure Code, 1908.

PRITPAL SINGH, J.

1. Ram Rakha was owner of the property in dispute consisting of 1/12th share in land measuring 12 Kanals 3 Marlas, a residential house, a workshop and a Bara situate in village Lohgarh alias Fidde, in district Ropar. On his death his daughter Smt. Raksha Rani filed a suit for possession of this property claiming to be the sole heir of the deceased. The suit was opposed by Ram Lal defendant, nephew of the deceased, on the plea that the property in dispute had been bequeathed in his favour by the deceased on the basis of a registered will dt. 12th April, 1978. Some other objections were also taken regarding the maintainability of the suit. On the pleadings of the parties a number of issues were framed by the learned trial Court. Statements of two witnesses of the defendant Ram Lal were recorded by the trial Court on 29th Jan. 1981. At that stage Smt. Raksha Rani and Ram Lal arrived at a settlement and their statements were recorded which were signed by them. The statement made by the defendant Ram Lal is as follows :-

"My will Exhibit D-1 has been accepted to be correct by the plaintiff. Since we are brother and sister, therefore, the land which I have inherited from Rakha Ram, half share thereof I am prepared to give to the plaintiff of which she would be the absolute owner but if she intends to sell that land then she will have to sell it to me. The house, Bara and workshop belonging to Rakha Ram would remain my property and the plaintiff would have no right in respect of the same. The decree may be passed in accordance with this for half share of the land. The decree may be passed for 1/24th share."

Thereafter the statement of plaintiff Raksha Rani was recorded in the following terms :-

"I have heard the statement of the defendant. Order be passed in accordance with the same. Statement of the defendant is correct."

In view of the statements of the parties, a decree for possession of 1/24th share in the land in dispute was passed in favour of the plaintiff. The rest of her suit regarding residential house, workshop and Bara was dismissed. Against this consent decree an appeal was filed by the plaintiff Smt. Raksha Rani which was heard by the Additional District Judge, Ropar. The lower appellate Court held that the consent decree was not appealable and consequently the appeal was dismissed.

2. In the second appeal filed by the plaintiff Smt. Raksha Rani, before this Court, reliance was placed at the motion stage on a judgement of this Court in Ashwani Kumar Kaushik V/s. Ram Rattan 1980 Rev LR 670 wherein a learned single Judge held that an appEal is maintainable against a consent decree when the trial Court does not pass a decree strictly on the basis of compromise and adds something more thereto. It was ruled that once it is held that the decree is not in accordance with the compromise or strictly there is no compromise as such between the parties, such a decree is appealable. The Motion Bench doubted the correctness of this view and, therefore admitted the second appeal for reconsideration of Ashwani Kumar Kaushik s case (supra) by a Division Bench. It is in these circumstances that this case has come up before us for consideration.

3. To appreciate the legal issue which is before us for determination it is necessary to reproduce S.96 of the Civil P.C. (hereinafter referred to as the Code), which runs as follows :-

"96. Appeal from original decree. - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cau