Vinod K.Sharma, J. (Oral).:-This second appeal against order has been filed against the judgment dated 23.5.2005 passed by the learned Additional District Judge, Hoshiarpur vide which the compromise decree passed by the learned trial Court was ordered to be set aside and the case was remanded to the trial Court for adjudication on the question of ‘Will’ dated 3.1.1989 and thereafter to consider the compromise Ex CI.

2. The plaintiff-appellant-Harbans Lal had filed a suit for declaration to the effect that the plaintiff and defendant Nos.1 and 2 were joint owners in possession in equal shares, in respect of land earlier owned by Mansa Ram situated in village Dharmpur. He also challenged the mutation of inheritance No.1323 sanctioned in the name of plaintiff and all the defendants in equal shares to be wrong and liable to be set aside. Consequential relief of injunction was also claimed for restraining the respondents from transferring, in any manner, any specific part of the suit land or from cutting or removing the trees from the suit land. During the pendency of the suit, the parties entered into a compromise, which was placed on record as Ex.C-1 and the suit was disposed of in terms of the said compromise.

3. Respondent–defendants No.1 and 2 filed an appeal against the decree passed by learned trial Court on the basis of compromise on the plea that the said compromise was void and not binding upon the rights of defendant No.2 as he was not a party to the said compromise. Though there is a bar on filing an appeal against the compromise decree, however, the said appeal was entertained as admittedly respondent-defendant No.2 was not a party to the said compromise. The learned lower appellate court came to the conclusion that one of the issues regarding ‘Will’ was material issue and any decision on the said issue was likely to affect the rights of the parties in the suit. However, the appeal was entertained primarily on the ground that compromise was not lawful. The relevant Order XXIII, Rule 3, 3A & 3B of the Code of Civil Procedure reads as under:-

“3. 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.

Provided that the hearing of a suit shall proceed and no adjournment shall be granted in it for the purpose of deciding whether there has been any adjustment or satisfaction, unless the Court for reasons to be recorded in writing, thinks fit to grant such adjournment, and provided further that the judgment in the suit shall not be announced until the question of adjustment or satisfaction has been decided:

Provided further that when an application is made by all the parties to the suit, either in writing or in open Court through their Counsel, that they wish to compromise the suit, the Court may fix a date on which the parties or their Counsel should appear and the compromise be recorded, but shall proceed to hear those witnesses in the suit who are already in attenda