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High Court Of Madhya Pradesh
C. P. SEN, GULAB C. GUPTA
THAKUR PRASAD - Appellant
Versus
BHAGWANDAS - Respondents
CIV. REVN. 1910 Of 1983
Decided On : 11/09/1984
(2) Civil P. C. (Amendment) Act, 1976-S. 89-addition of rule 1-A and omission of clause (m) of rule 43-appeal against order passed on a compromise application-whether saved or not-Civil P. C., 1908-S. 96 (3).
(3) Civil P. C., 1908-S.96 (3)-appeal against an order on compromise application-whether the bar applies after the amendments in order 43.
Per Sen, J.-An appeal can lie inspite of section 96 (3) even if the compromise decree is challenged on the ground that it is voidable. Otherwise provisions of Order 43, Rule 1-A will become otiose and meaningless.
Similarly if the compromise is not lawful and should not have been recorded and the decree is passed an appeal is maintainable and not barred under section 96 (3). [ Para 4
An appeal lies under Rule 1-A of Order 43. The intention of the legislature being to do away with multiplicity of proceedings, rule 1 (m) of Order 43 has also beer omitted because the aggrieved party can take the point that the compromise ought or ought not to have been recorded in an appeal against the decree under the added Rule 1-A
An appeal lies under section 96 read with Order 43, Rule 1-A. The bar under section 96 (3) is only against lawful compromise. AIR 1918 Nag. 129, AIR 1929 Sind 32 & AIR 1952 All 29 held to be no good law. AIR 1981 A P 362, AIR 1921 Mad 696, AIR 1922 Lah. 309, AIR 1953 Pat 306, AIR 1952 Tra-Cochin 91 dissented from. [ Para 5
Clearly the intention of the Legislature in making the amendments in the Civil Procedure Code was to simplify the procedure and avoid multiplicity of proceedings in order to curtail litigation. Therefore, the clear intention in enacting Order 23, Rule 3-A and deleting Order 43, Rule 1 (m) and adding Rule 1-A to Order 43, is that whatever objection may be against recording or non-recording of the compromise should be in the same proceeding, that is, firstly in the suit and then in appeal under section 96. If it is otherwise, then the party will be left with no remedy when the Court wrongly records a compromise or refuses to record a compromise, because the party aggrieved cannot file a separate suit and the appeal under Order 43, Rule 1 (m) has been abolished, so he has to challenge the same in the appeal against the decree that may be filed under section 96 read with Order 43, Rule 1-A. If the appellate Court finds that a com romise was lawfully recorded, then appeal has to be thrown out as incompetent. If any other interpretation is put then Order 43, Rule 1-A (2) becomes meaningless. [ Para 6
Per Gupta, J. (agreeing with Sen, J. )- The gravitational pull of 1976 amendment was to simplify law with a view to avoid delay in achieving finality. The law before the amendment of 1976 permitted not only an appeal from the order recording or refusing to record a compromise under Order 23, Rule 3 C. P. C., hut also permitted challenge to the final decree either by a review or by a regular civil suit. This, without doubt, had the effect of lengthening the litigation and cause unnecessary hardship. Deletion of clause (m) from Order 43, Rule 1 C. P. C. and addition of Order 43, Rule 3-A have the effect of trimming this letigative length. Similarly, the addition of Order 23, Rule 3-A has the effect of clarifying this intention. [ Para 12
A mere compromise, without being accepted by the Court, is of no consequence. Clearly, therefore, the basic or fundamental reason for the bar created by section 96 (3) C. P. C., does not exist in a case where the parties are not agreeable to the compromise and the C0urt has to enforce it inspite of the opposition of the party or parties. [ Para 14
Section 96 must be interpreted as giving a right of appeal against all decrees except one passed by the Court with the consent of the parties. [ Para 15
Clearly the bar of sub section (3) of section 96 would not be attracted in a case where the decree is passed under the compulsion of the Court. [ Para 15
(4) Interpretation of Statutes-construction of two apparent conflicting provisions-manner of resolving such conflict.
The Court should lean against a construction which would make any particular provision futile. The Court should also, as far as possible, avoid construction which results in anomaly. [ Para 6
(5) Civil P. C., 1908-Ss.96 & 115-appeal and revision-appeal competent-revision not maintainable.
(6) Appeal and Revision-appeal competent-revision does not lie.
Where a regular appeal against the compromise decree to the District Judge, but since the appeal has been dismissed for non-payment of proper Court fees, an appeal lies against this order of the District Judge. A revision does not he against the order of the trial Court recording the comproli1ise and passing a decree in terms thereof. AIR 1973 SC 2384 relied on. [ Para 7
(7) Interpretation of Statutes-section should be read as a whole.
The golden rule of interpretation is to read the whole of section, inclusive of the proviso to determine their meaning in the context. [ Para 15
( 1 ) THIS opinion shall also govern Civil Revision No. 1784 of 1983 between the same parties. Both these revisions arise out of the same suit. The following question has been referred by the learned Single Judge for opinion of this Bench :"whether in view of the deletion of sub-rule (m) of Rule 1 of Order 43 of the Code of Civil Procedure by the Amending Act No. 104 of 1976, an appeal is competent under O. 43, R. 1-A, particularly when there is a bar to appeal under S. 96 (3) of the Code of Civil Procedure?"
( 2 ) THE parties are real brothers. Their father Dhannalal died in the year 1964 leaving behind his widow Smt. Reotibai and five sons, including the applicant and non-applicant. By agreement dated 29-1-1980, the legal representatives of Dhannalal, referred the dispute regarding the property left by the deceased to Panchas. However, due to certain opposition the Panchas could not give their award and closed the proceeding. The non-applicant then filed civil suit for possession of house No. 147. Girja Kund Ward, Seoni claiming it to be his exclusive property and it was alleged that as the applicant came on transfer, the non-applicant permitted him to stay in the house but thereafter he has not vacated the same. The applicant, on the other hand, contended that the suit house is joint family property and was purchased out of joint family funds but the sale deed was taken in the name of the non-applicant. However, on 16-3-1982, parties filed a compromise application in the suit and the case was fixed for 19-3-1982. On that day the applicant opposed the compromise application saying that his signature has been taken under coercion and it was not legal because it embraces property other than the suit property and also involved persons not party to the suit. After recording some evidence, the trial court came to the conclusion that the compromise was voluntarily executed and passed a decree in terms thereof on 7-4-1982. The applicant filed Misc. Civil Appeal No. 10 of 1982 in the court of District Judge under Order 43. R. 1-A of the Code of Civil Procedure, which was registered as Misc. Appeal. The appeal was dismissed on merits on 9-10-1982. The applicant has also preferred Civil Revision No. 965 of 1982 in this court against the order of the trial court dated 7-4-1982. This court by order dated 4-4-1983 in Civil Revision No. 965 of 1982 set aside the compromise recorded by thetrial court dated 7-4-1982. This court by order dated 4-4-1983 in Civil Revision No. 965 of 1982 set aside the compromise recorded by the trial court observing that the compromise was invalid as it embraces bulk of the properties which were not the subject matter of the suit and also it includes certain other persons who were not parties to the suit and that being so, even if the compromise is held to be with free-consent of the applicant, it will not be possible to uphold the decree. Therefore, the case was remanded to the trial court with a direction that it would be open to the non-applicant to urge that clause 2 (k) relates only to the suit property and is between the parties to the suit and at least a decree with respect to that part of the compromise should be passed and it would be open to the applicant to show that this clause 2 (k) is inseparable from other clauses and it is an integral part of the agreement. Thereupon the impugned order has been passed by the trial court on 10-10-1983 holding that clause 2 (k) is not inseparable from the compromise and it can stand by itself and as such a decree in respect of eviction of the applicant from the suit property has been passed. Against this order Civil Revision No. 1784 of 1983 has been preferred. The applicant also preferred an appeal under Order 43, Rule 1-A before the District Judge, who by order dated 28-10-1983 directed that as a regular appeal lies under S. 96 of the Code against the judgment and decree of the trial court proper court-fee must be paid. Since no proper court-fees w
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