Judgment:
Pasayat, J.
1. A pointt regarding maintainabilitty of the appeal has been raised on the ground that the appeal is incompetent in view of the bar imposed under Section 96(3) of the Code of Civil Procedure, 1908 (in short, the 'Code'). The learned counsel for parties were heard at length on the question.
2. The factual position is almost undisputed, and noted in brief is as follows :
A suit was filed by the appellant as plaintiff for partition by metes and bounds. Same was numbered as O. S. No. 29 of 1990, Class I in the Court of Subordinate Judge, Balasore, (as the Court was designated then). Respondents 1 and 2 are mother and brother of the appellant respectively, who were defendants in the suit: On 26-3-1990 a petition for compromise was filed which was read over and explained to the parties and was admitted. The learned subordinate Judge recorded the compromise, and decreed the suit finally in terms of the compromise petition being of the view that the petition for compromise was lawfully recorded. The decree was finally drawn on 28-3-1995.
3. In this appeal challenge is made to the compromise on the ground that valuable properties were allotted to the share of defendants. The appellant acted in good faith while entering into the compromise, and there has been unequal partition and improper allotment of share. It is also alleged that the compromise is bad due to improper valuation and non-allotment of legitimate share.
4. Miss Mira Ghose, learned counsel for appellant submitted that Section 96(3) of the Code does not put an absolute bar as would be evident from a bare reading of Order 43, Rule 1-A of the Code, which deals with right to challenge non-appeatable orders in appeal against decrees. Strong reliance has also been placed on a decision of the Apex Court in Banwari Lal v. Smt. Chando Devi (through L.R.); AIR 1993 SC 1139; and a decision rendered by a learned Single Judge of this Court in Hakimatun Nisa Bibi v. Md. Fakiruddin Khan (1993) 75 Cut LT 457, to contend that the appeal is competent and is maintainable.
Mr. A.K. Mahakud, learned counsel appearing for respondent No. 2 submitted that the appeal is not maintainable as ratio of the aforesaid two decisions does not apply to the facts of the present case.
5. In order to appreciate the rival submissions, it is necessary to take note of a few provisions. Section 96(3), and Order 43, Rule 1-A read as follows:
'96. Appeal from orginal decree.
(l)&(2)xx xx xx
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.'
'43. 1. xx xx xx
1 -A. Right to challenge non-appealable orders in appeal against decrees. Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.'
6. The experience of the courts has been that on many occasions parties having filed petitions of compromise on basis of which decrees are prepared later for one reason or other challenge the validity of such compromise. For setting aside such decrees suits used to be filed which dragged on for years including appeals to different Courts, Keeping in view the predicament of the Courts and the public, several amendments have been introduced in Order 23 of the Code which contain provisions relating to withdrawal and adjustment of suit, by Civil Procedure Code (Amendment) Act, 1976. Rule I of Order 23 of the Code prescribes that at any time after the institution of the suit, the plaintiff may abandon his suit or abandon a part of his claim. Rule 1 (3) provides that where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw such suit with liberty to institute a fresh suit. In view of Rule 1 (4) if plaintiff abandons his suit or withdraws such suit without permission referred to above, he shall be precluded from instituting any such suit in respect of such subject-matter. Rule 3 of Order 23 which contained the procedure regarding compromise of the suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree. Not only in Rule 3 some special requirements were introduced before acompromise is recorded by the Court including that the lawful agreement ora compromise must be in writing and signed by the parties, a proviso with an explanation was also added which is as follows,:
'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.'
7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said Rule. Having introduced the proviso along with the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3A in respect of institution of a separate suit for setting aside a decree on basis of compromise saying :--
'3A. Bar to suit.-- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.'
8. Earlier under Order 43, Rule 1 (m), an appeal was maintainable against an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. But by the amending Act that clause has been deleted; the result whereof is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise under Rule 3 of Order 23. Beingconscious that the right of appeal against the order recording or refusing to record an agreemennt or compromise under Rule 3 of Order 23 was being taken away, a new Rule 1A has been added to Order 43 which has been quoted supra.
9. Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties, Rule 1A(2) has been introduced saying that against adecree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order 43, Rule 1 (m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be Hied for setting aside such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such a right has been given under Rule 1A (2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute. This position has been succinctly stated in Banwarilal's case (AIR 1993 SC 1139)(supra) by the Apex Court.
10. In Hakimatun's case (1993 (75) Cut LT 457) (supra) it was observed that there may be cases where an order recording compromise was obtained from the Court by practising fraud on it or on account of mistake of the Court. No party should suffer in any such situations. Court can exercise the power under Section 151, of the Code without leaving the party to prefer an appeal to avoid the decree based on mistake of Court or fraud on Court in (kaying) the order recording compromise. Once the order is recalled, basis of the decree vanishes and decree also stands recalled.
11. A plain reading of Sub-rule (2) of Rule 1A would indicate that it postulates an appeal against a decree for its operation. In other words, the said provision would come into operation only in an appeal against a decree passed in a suit after recording or refusing to record a compromise. The sub-rule only enables the appellant to contest the decree on the ground that a compromise should or should not have been recorded. The language of Rule 1A and for that matter of sub-rule (2) thereof contrasted with opening words of Rule 1 of Order 43 clearly indicates that the rule does not contemplate conferring a right of appeal as is done under Rule 1 of Order 43. It is merely an enabling provision.
12. Present is not the case where any fraud is alleged to have been practised. The plea is unequal and irregular allotment of share and improper valuation. That is stated to be on account of misrepresentation. It is usual in almost every compromise that there is some inequality in allotment of shares. In view of accepted relationship between parties, it appears to be normal. That cannot be a ground to take away the effect of a compromise entered into by the parties. So far as improper valuation is concerned, it is not shown as to how the valuation was improper. An attempt to assail the compromise at this belated stage appears to be out-come of an after-thought. The compromise petition was read over and explained to parties as is evident from the order passed by the learned Subordinate Judge. That being the position, neither the decision of the Apex Court nor the decision rendered by a learned single Judge of this Court has any application to the facts of present case. In the case at hand, there is no assertion or material to show that there was mistake of the Court or fraud on the Court. Right has been given under Rule 1A (2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code is not a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute. This is a case where the factum of compromise or agreement is not in dispute. Challenge is on the grounds indicated above.
13. The inevitable condition is that the appeal is not maintainable, is not entertained and is dismissed.
S.C. Datta, J.
14. I agree.