No appeal lies from a decree passed by the Court with the consent of parties.

P.C.Pandit, J.

1. Mahant Shiv Kumar brought a suit against Mahant Kewal Krishan and Mahant Ram Sarup for partition of a house situate in Batala, District Gurdaspur. During the trial of the suit, a compromise was effected between the parties on 24th of October, 1967. Mahant Shiv Kumar plaintiff and his counsel, made a statement to the effect that the case had been compromised. The plaintiff agreed to pay Rs. 500 to Mahant Kewal Krishan by 3rd of November, 1967, a preliminary decree to that effect might be passed in his favour and the parties be ordered to bear their own costs. On that very date, the statement of Mahant Kewal Krishan and his counsel was also recorded. The defendant stated that he had heard the statement made by the plaintiff and a preliminary decree be made in accordance therewith. The Subordinate Judge, who was trying the case, then at that very time passed the following order:

"In view of the terms of the compromise set out in the statements of the parties, recorded today, the plaintiff is granted a preliminary decree on the basis of compromise for the partition of the suit property according to the shares specified in the plaint on payment of a sum of Rs. 500 to Kewal Krishan defendant on or before 3-11-1967. In case, the plaintiff does not pay the stipulated amount to Kewal Krishan defendant or deposits the same In the Court for payment by the due date, the suit of the plaintiff shall stand dismissed."

The above order was followed by a preliminary decree. Against this decree, Mahant Kewal Krishan has filed the present appeal in this Court.

2. On 28th of November, 1967, the following order was passed on this appeal:-

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"Notice. D. B. Print record. Stay the passing of the final decree ad interim. Notice as to this also for a very early date."

3. On 5th of February, 1968, an application (Civil Miscellaneous No. 317/C of 1968) under Section 151 of the Code of Civil Procedure was filed on behalf of Mahant Shiv Kumar respondent alleging that the appellant who had got only about l/9th share in the property in dispute, had filed the appeal against the consent decree dated the 24th of October, 1967, mainly with the object of prolonging the proceedings pending in the trial Court for the passing of the final decree, so that he might retain his possession over a much larger portion of the house in dispute than the one that fell to his share. The appeal was liable to be dismissed on the sole ground that it was not competent in view of the provisions of Section 96 (3) of the Code of Civil Procedure. It was prayed that the question of the maintainability of the appeal be decided in the first instance before the printing of the record of the case.

4. Notice of this application was given to the counsel for the appellant and this matter has now been placed before us.

5. Learned counsel for Mahant Shiv Kumar respondent has relied on the provisions of Section 96 (3) of the Code of Civil Procedure which lay down that no appeal shall lie from a decree passed by the Court with the consent of parties, From the statements made by the respondent Mahant Shiv Kumar and the appellant Mahant Kewal Krishan and the order passed by the Court below, it is apparent that the matter had been compromised between them and on the basis of the same, a preliminary decree was passed by the trial Judge. According to Section 96 (3) of the Code of Civil Procedure, no appeal would lie against a decree passed by the Court with the consent of parties.

6. Learned counsel for the appellant, on the other hand, raised two submissions before us. In the first place, he contended that according to the statements made by the parties, it appeared that the plaintiff wanted a decree for an injunction to be passed in his favour, while he Court below granted a preliminary decree for the partition of the house in dispute. Consequently, according to the learned counsel, the deciee and the judgment of the Court below were not in accordance with the statements of t