An appeal is maintainable against a decree passed on a compromise under Order XLIII, Rule 1a (2) of the Code of Civil Procedure, even though Section 96(3) of the Code prohibits appeals from decrees passed with the consent of the parties.

( 1 ) THE core question in this writ petition is as to whether the appeal is maintainable against a decree purporting to have been passed on the compromise as alleged by one of the parties to the suit under Order XLIII. Rule 1a of the Code of Civil Procedure (in short C. P. C.) in spite of prohibition contained under Section 96 (3), C. P. C. that no appeal shall lie from a decree passed by the Court with the consent of the parties.

( 2 ) BRIEFLY stated, the facts are, that Vishwa Nath, father of respondent No. 2, filed Civil Suit No. 166 of 1979 in the Court of Second Additional Munsff, Azamgarh for injunction and demolition against the defendant-petitioners and their father Ujagir on the allegation that the defendants had encroached upon the land of the plaintiff and started illegal constructions. The defendants contested the suit and denied that the plaintiff had any right and title over the land in question. During the pendency of the proceedings in the suit, a compromise was filed. The petitioners moved an application for recording the compromise. The plaintiff filed objection denying that he had accepted the compromise. His thumb impression was taken on blank papers and it was outcome of fraud. The statement of Vishwa Nath father of the plaintiff and Mani Ram were recorded by the Court. On consideration of the evidence, the trial court accepted the compromise and passed a decree in terms of the compromise on 18. 12. 1985. The plaintiff filed appeal No. 591 of 1985. The appellate court allowed the appeal and remanded the case by the impugned order dated 28. 11. 1998.

( 3 ) LEARNED counsel for the petitioner has not assailed the findings recorded by the appellate court but has urged that the appeal was not maintainable as sub-section (3) of Section 96 provides that no appeal shall He from a decree passed by the Court with the consent of the parties and there is no other provision under which an appeal is maintainable against such a decree.

( 4 ) SUB-SECTION (3) of Section 96 contemplates a decree which has been passed with the consent of the parties. A consent is outcome of an agreement between the parties. The party relying on a consent must prove that it satisfies all the ingredients of a valid agreement. In Jagdish Narain v. Rasul Ahmad. AIR 1952 All 29, it was held that when the consent upon the basis of which a decree has been passed by the Court is itself challenged in the Court of appeal, it cannot be taken for granted that the decree was a consent decree. A consent decree must mean a decree validly consented to either by the party himself or by his duly authorised agent. In Basant Lal and another v. Rameshwar Prasad and others. AIR 1957 All 287, the Court taking into consideration the nature of the compromise decree held that a consent decree is no better than the original contract on the basis of which the decree is obtained. A Full Bench of this Court in Habib Miyan and another v. M. Ahmad, AIR 1969 All 296, considering the nature of the consent decree observed that a compromise decree is a creature of an agreement on which it is based and subject to all the incidents of such agreement, that it is but a contract with the command of a Judge super-added to it.

( 5 ) IT is open to a party to file an appeal asserting that there was no valid consent on the basis of which decree has been passed. The Court can pass a decree based on the compromise under order XXIII, Rule 3, C. P. C. 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. The proviso to Rule 3 cast a duty upon the Court to adjudica