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High Court Of Madhya Pradesh
A. H. Khan and Shiv Dayal, JJ.
MATHURA PRASAD PHOOL CHAND - Appellant
Versus
PARMANAND THAKUR DAS - Respondents
Civil Misc. Appeal 5 Of 1959
Decided On : 12/04/1959
COMPROMISE - ORDER RECORDING - APPEAL - Order recording compromise is appealable under Order 43, Rule 1 (m), C. P. C. irrespective of whether a consent decree followed it or not. - COMPROMISE - ORDER RECORDING - JURISDICTION - Order recording compromise without jurisdiction - Compromise petition not containing its terms - Compromise petition not subscribed to by all the parties to the suit - Compromise petition filed by a pleader whose power of attorney was revoked - Compromise petition filed by a pleader not authorized to deal with immovable properties of the principal - Compromise petition filed fraudulently - Compromise petition not containing the manner in which the compromise is arrived - Compromise petition not stating when and how and by whom and to whom the money was paid - Compromise petition not stating that the suit has been adjusted wholly or in part or that the appellant's claim has been wholly or partly satisfied - Compromise petition not stating the term or the compromise according to which the decree is to be passed.
Fact of the Case:
The appellant instituted a suit for sale of mortgage property for the recovery of Rs. 22,871-11-0 and consequential reliefs. The defendants filed their written statements. On 4-1-1956 a compromise petition was made wherein it was stated that the plaintiffs and the defendants had arrived at a private settlement, that the plaintiffs had received from the defendants the amount of the claim and it was prayed that the suit be dismissed in full satisfaction. The Additional District Judge recorded the compromise and by a separate judgment dismissed the suit on its basis that very day.
Finding of the Court:
The order recording the compromise is appealable under Order 43, Rule 1 (m), C. P. C. irrespective of whether a consent decree followed it or not. - The compromise petition contains its terms as it was clearly stated that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction. - The compromise petition was subscribed to by all the parties to the suit who were necessary for the compromise. - The compromise petition was filed by a pleader who was authorized to deal with immovable properties of the principal. - The compromise petition was not filed fraudulently. - The compromise petition contains the manner in which the compromise is arrived as it was clearly stated that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction. - The compromise petition states when and how and by whom and to whom the money was paid as it was clearly stated that the plaintiffs had received from the defendants the amount of the claim. - The compromise petition states that the suit has been adjusted wholly or in part or that the appellant's claim has been wholly or partly satisfied as it was clearly stated that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction. - The compromise petition states the term or the compromise according to which the decree is to be passed as it was clearly stated that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction.
Issues: Whether an order recording a compromise is appealable under Order 43, Rule 1 (m), C. P. C. irrespective of whether a consent decree followed it or not. - Whether a compromise petition contains its terms. - Whether a compromise petition is subscribed to by all the parties to the suit. - Whether a compromise petition is filed by a pleader who is authorized to deal with immovable properties of the principal. - Whether a compromise petition is filed fraudulently. - Whether a compromise petition contains the manner in which the compromise is arrived. - Whether a compromise petition states when and how and by whom and to whom the money was paid. - Whether a compromise petition states that the suit has been adjusted wholly or in part or that the appellant's claim has been wholly or partly satisfied. - Whether a compromise petition states the term or the compromise according to which the decree is to be passed.
Ratio Decidendi: An order recording a compromise is appealable under Order 43, Rule 1 (m), C. P. C. irrespective of whether a consent decree followed it or not. - A compromise petition contains its terms if it clearly states that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction. - A compromise petition is subscribed to by all the parties to the suit who are necessary for the compromise. - A compromise petition is filed by a pleader who is authorized to deal with immovable properties of the principal. - A compromise petition is not filed fraudulently. - A compromise petition contains the manner in which the compromise is arrived if it clearly states that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction. - A compromise petition states when and how and by whom and to whom the money was paid if it clearly states that the plaintiffs had received from the defendants the amount of the claim. - A compromise petition states that the suit has been adjusted wholly or in part or that the appellant's claim has been wholly or partly satisfied if it clearly states that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction. - A compromise petition states the term or the compromise according to which the decree is to be passed if it clearly states that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction.
Final Decision: The appeal is dismissed, leaving the parties to bear their own costs.
( 1 ) THIS is an appeal under Order 43, Rule 1 (m) of the Code of Civil Procedure from an order recording a compromise which is challenged as fraudulent, unauthorized and illegal.
( 2 ) THE material facts arc that on 20-9-1955, the appellant instituted a suit in the Court of the District Judge for sale of mortgage property for the recovery of Rs. 22,871-11-0 and consequential reliefs. The defendants Parma, Tulsiram, Ballabh Das and Smt. Narayani were the mortgagors while Badrilal defendant No. 5 was the subsequent mortgagee. On 28-12-1955, the first four defendants filed their written statement and on 30-12-1955, Badri Lal filed his written statement. 27-1-1956 was then fixed for the framing of issues.
( 3 ) HOWEVER, on 4-1-1956 a compromise petition was made wherein it was stated that the plaintiffs and the defendants Nos. 1, 2, 3 and 4 had arrived at a private settlement, that the plaintiffs had received from the defendants the amount of the claim and it was prayed that the suit be dismissed in full satisfaction. This was signed my Raghunath Das Goel, Mnkhtar Am of the plaintiffs by the first four defendants and by the counsel for those defendants. The additional District Judge recorded the compromise and by a separate judgment dismissed the suit on its basis that very day.
( 4 ) TO this appeal, against the order recording the compromise, two preliminary objections are raised by Shri Shejwalkar. It is first contended that the order recording the compromise was a consent order and as such no appeal lay. Learned counsel relies on the decision in Onkar Bhagwan v. Gamna Lakhaji and Co. , AIR 1933 Bom 205, where it is held that where there has been no contest in the court below, but an application for compromise has been put in and is recorded and a decree is passed in its terms no appeal lies cither against the decree itself, an appeal there from being barred under Section 96 (3), or against the order under Order 43, Rule 1 (m), since there are no materials for adjudication. This was followed in Amarnath Radharam v. Smt. Malan, AIR 1954 Punj 259. In these cases, the proper remedies open to the aggrieved party were suggested. With great respect I cannot agree with that view. The question whether an appeal is patent or not does not depend upon the availability of other remedies. I shall therefore, proceed to examine whether this appeal falls within the purview of Order 43, Rule 1 (m) or not. The sub-clause runs thus : " (m) an order under Rule 3 of Order XXIII recording or refusing to record an agreement compromise or satisfaction".
( 5 ) THIS sub-clause specifically centers a right of appeal against an order recording a compromise or satisfaction and does not qualify it by any restrictions or conditions as to the nature of that order --it may have been passed after contest or without contest. In my view the order is appealable irrespective of whether a consent decree followed it or not. It is obvious enough from the scheme of the Cods that there is a distinction between a consent decree arid a consent order. Whereas Section 96 (3) of the Code bars an appeal against a consent decree, no such provision is found in Section 104 or in Order 43, Rule 1 of the Code. The framers of the law had in their mind the distinction between an order recording a compromise and a final decree passed in accordance therewith. Clause (m) of Order 43, Rule 1 being unqualified, the right of appeal cannot be denied on the ground that there was no contest in the Court below. It will be different matter altogether whether in the absence of adequate material on record the appellants will be entitled to a substantial relief in the appellate Court. In the view, that I am taking I am supported by the decisions in Ramanarayana v. Rama Krishnarao AIR 1936 Mad 385 and Jialal Raina v. Prithvi Nath Raina, AIR 1954 J and K 54. In Jagdish Narain v. Rasul Ahmad, AIR 1952 All 29 it was held :
"when the consent upon the basis of which a decree has been pass
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