An order passed under Order 23, Rule 1 or Order 23, Rule 3 of the Code of Civil Procedure is not appealable.

( 1 ) IT is alleged that the petitioners as plaintiff instituted a suit being Original Suit No. 460 of 1992 in the Court of Additional Chief City Magistrate, Vth Court, Kanpur Dehat, against opposite parties Nos. 3, 4, 5 and 6 as defendants, for specific performance of contract for sale executed by the opposite party No. 3 (defendant No. 1) in favour of the petitioners Nos. 1 and 2. It is alleged that the defendant No. 1 had executed sale-deed in respect of the selfsame property in favour of the opposite parties Nos. 2, 4, 5 and 6 respectively.

( 2 ) SRI K. K. Nirkhi, learned Counsel for the petitioners submit that a compromise was arrived at between the petitioners and respondent No. 3 and accordingly application for compromise was filed before the trial Court. The learned trial Court by an order dated 16-3-1994 had rejected the said application for compromise. Against the said order the petitioners have preferred revision being Civil Revision No. 74 of 1994. By an order dated 27-2-1998 passed by Vth Additional District Judge, Kanpur Nagar, the said revision was dismissed. Learned Counsel for the petitioners contends that he has challenged only this order dated 27-2-1998 without challenging the order dated 16-3-1994.

( 3 ) HE contends that against the order refusing to record compromise an appeal lies. But Order 43, Rule 1 of the Code of Civil Procedure does not provide any such provision making an order under Order 23, Rule 3 of the Code, appealable. When such provision was pointed out to the learned Counsel for the petitioner he contends that it was not application for compromise but was an application for withdrawal of suit under Order 23, Rule 1 of the Code. He contends that since the defendant No. 1 had agreed to sell the suit property in favour of the petitioners outside the Court, therefore, he wanted to withdraw the suit by means of such application, which was dismissed. According to him this order under Order 23, Rule 1 of the Code is appealable. Then again Order 43, Rule 1 of the Code does not provide that an order under Order 23, Rule 1 of the Code is appealable.

( 4 ) LEARNED Counsel for the petitioner then was asked to show any provision under which an order passed under Order 23, Rule 1 or 3 refusing to allow the suit to be withdrawn or refusing to record compromise is appealable.

( 5 ) IN the facts and circumstances of the case, it appears that the petitioner has not enclosed copy of the application either for withdrawal orfor compromise, as the case may be, along with this writ petition to show the nature and character of the said application. He has also not enclosed copy of order dated 16-3-1994 passed by the learned Additional Chief City Magistrate, Vth Court, Kanpur Dehat. It is also not mentioned in the said order dated 27-2-1998 as to which has the place of seat of the said Additional Chief City Magistrate. The revisional order appears to have been passed by the Additional District Judge, Vth Court, Kanpur Nagar. It is not known how revision against the order passed by the Additional Chief City Magistrate, Vth Court, Kanpur Dehat, could be maintained before the Additional District Judge, at Kanpur Nagar. In absence of the order passed by the trial Court it is difficult to decide the said question. From the facts it appears that he may be City Magistrate of Kanpur Nagar. It is also not known as to how a suit could be instituted before the Additional Chief City Magistrate. It is also not known whether any judicial power to be exercised by a Civil Judge, was conferred on the City Magistrate. The writ petition appears to suffer from non-disclosure of material facts in order to enable this Court to enter into those questions. It appears that the petitioners have suppressed material facts while moving this petition and have not come with clean hands, which is one of the factor preventing such persons from invoking writ jurisdiction.

( 6 ) THEN again from the facts and circumstances of the case it