M.R. Shah, J.
1. Present Appeal from Order is filed by the appellants - original defendant Nos. 2 and defendant Nos. 5 to 7 of Special Civil Suit No. 04 of 2002 challenging the order and decree passed by the learned Principal Senior Civil Judge, Deesa dated 20th July, 2007 below Exhibit Nos. 623, 637, 626, 638, 645 and 635 in Special Civil Suit No. 04 of 2002.
2. Mr. H.M.Parikh, learned Advocate appearing on behalf of respondent Nos. 5 to 11 herein and defendant Nos. 14 and 15 has raised preliminary objection with respect to maintainability of present Appeal from Order under Order 43 Rule 1 of the C.P.C. As preliminary objection with respect to maintainability of present Appeal from Order is raised, this Court proposes to consider the same first.
3. Few facts are necessary for the purpose of determination of maintainability of present Appeal from Order against impugned judgement, order and decree passed by the learned trial Court:
Respondent Nos. 1/1 to 1/6 herein - original plaintiffs instituted Special Civil Suit No. 12 of 1983 (old) New No. 04 of 2002 in the Court of learned Principal Senior Civil Judge, Deesa against defendants for specific performance of agreement to sale / Sathakat dated 14.12.1981 and in the alternative to pay compensation/ damages of Rs. 30 lacs with 12% interest. Original plaintiffs prayed for permanent injunction in the said Suit. That during the course of hearing of aforesaid Suit consent terms / compromise was submitted at Exh.600 between the plaintiffs on one side and defendant Nos. 1/1 to 1/3 and defendant Nos. 2, 5 to 7 on other side. Matter was ex-parte against defendant No. 3. Original defendant No. 4 has expired during trail and he has died leaving no heirs. As consent terms / comprise was only between the plaintiffs on one side and other defendant Nos. 1/1 to 1/3 and defendant Nos. 2, 5 to 7 on other side and there were other defendants i.e. defendant Nos. 8 to 15 on record who were not parties to the compromise at Exh.600, the learned trial Court recored the compromise and decided to proceed with the trial against remaining defendants. Remaining defendant Nos. 8 to 15 submitted their written objections at Exh.603 and the plaintiffs also submitted their counter reply to Exh.603 vide Exh.604. It appears that while the matter was kept for hearing of Exh.603 and Exh.604, defendant Nos. 2, 6 and 7 vide their applications at Exh.626 and 637 objected to consent terms / compromise which was submitted at Exh.600 and the aforesaid defendants prayed not to pass decree pursuant to the said consent terms / compromise. It appears that after submission of aforesaid applications at Exh.623, 626 another consent terms was arrived at between the plaintiffs and remaining defendants (Nos.8 to 15) and the learned trial Court recorded the said compromise / consent terms at Exh.634 and Exh.635.
Original plaintiffs submitted their reply vide Exh.643 in response to Exh.623 and Exh.637 and submitted reply vide Exh.644 in response to Exh.626 and Exh.638. Original plaintiffs submitted application at Exh.645 requesting the Court to pass decree on the basis of compromise at Exh.600 and Exh.635. All the aforesaid application below Exh.623, Exh.637, Exh.626, Exh.638, Exh.645 and Exh.635 came to be heard jointly by the learned trial Court. As stated herein above, application Exh.623, 637, 626 and 638 were filed by defendant Nos. 5, 2, 6 and 7 who were parties to the earlier first consent terms / compromise submitted at Exh.600 and who subsequently objected to the said compromise and consent terms and requested the Court not to pass decree on the basis of said consent terms / compromise. As stated above, second compromise was between the plaintiffs and remaining defendant Nos. 8 to 15 submitted at Exh.634 and 635 and application at Exh.645 was submitted by the original plaintiffs requesting the Court to pass decree on the basis of compromise at Exh.600 and Exh.635. That the learned trial Court passed the impugned judgment, order / decree as per consent terms at Exh.600 and 635 allowing the plaintiff's application at Exh.645 and dismissed the application submitted by defendant Nos. 5, 2, 6 and 7 i.e. application at Exh.623, 637, 626 and 638 and thereby declared that sale deed at Exh.501, Exh.503 and Exh.505 are null and void as per compromise at Exh.600 and Exh.635. The learned trial Court has also passed the decree for possession of suit fields handing over by defendant Nos. 8 to 15 to the plaintiffs and confirmed the same as decree of possession from defendant Nos. 1/1 to 1/3, 2, 5, 6 and 7. The learned trial Court has also passed a decree for specific performance as prayed in Para 24(1) of the plaint and directed the defendant Nos. 1/1 to 1/3, 2, 5, 6 and 7 to execute the sale deed of the lands mentioned in said relief para in favour of the plaintiffs or as per the names shown by plaintiffs on payment of remaining consideration by the plaintiffs as per Banakhat dated 14.12.1981. Being aggrieved and dissatisfied with the impugned judgment, order and decree dated 20th July, 2007, the appellants - original defendant Nos. 2, 5 to 7 have preferred present Appeal from Order under Order XLIII Rule 1 and 1A of the Code of Civil Procedure.
4. As stated above, Mr. H.M.Parikh, learned Advocate appearing on behalf of some of the respondents has raised preliminary objection with respect to maintainability of present Appeal from Order under Order XLIII Rule 1 of the Code of Civil Procedure. Mr. Parikh, learned Advocate appearing on behalf of respondent Nos. 5 to 11 herein and defendant Nos. 14 and 15 and other learned Advocates appearing on behalf of respective respondents have heavily relied upon the decision of the Hon'ble Supreme Court in the case of Kishun alias Ram Kishun through L.Rs. v. Bihari (D) by L.Rs. reported in : AIR2005SC3799 as well as another decision of the Hon'ble Supreme Court in the case of Banwari Lal v. Smt. Chando Devi and Anr. reported in : AIR1993SC1139 . It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decisions, when decree came to be passed and objections are raised with respect to consent terms and signatory to the consent terms request not to pass order on the basis of aforesaid consent terms and when judgment and decree came to be passed, appeal under Section 96 of the Code of Civil Procedure would be maintainable. It is submitted that considering Order XLIII Rule 1A Sub-rule (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'. It is further submitted that as held by Hon'ble Supreme Court in the case of Kishun (supra), 'when a decree has been passed on compromise and when there is a contest on the question whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96(3) of the Code could not have application. An appeal and a second appeal with its limitations would be available to the party feeling aggrieved by the decree passed on such a disputed compromise or on a rejection of the compromise set up.' Therefore, it is requested to dismiss the present Appeal from Order as not maintainable by relegating present appellants to prefer First Appeal under Section 96 of the Code of Civil Procedure.
5. On the other hand, Mrs. Mehta, learned Advocate appearing on behalf of the appellants has submitted that Appeal from Order under Order XLIII Rule 1 and 1A would be maintainable. It is submitted that earlier prior to amendment of 1976, Appeal from Order was provided under Order XLIII Rule 1(m) of the Code of Civil Procedure. However, there was amendment in the Code of Civil Procedure in the year 1976 and simultaneously three relevant amendments have taken place (i) under Sub-section (3) of Section 96 of the C.P.C. (ii) under Order XXIII Rule 3 of the C.P.C. and under Order XXIII Rule 3A and introduction of Order XLIII Rule 1A of the CPC and deletion of Order XLIII Rule (1)(m) of the CPC. It is submitted that after amendment of 1976 now as per Sub-section (3) of Section 96, no appeal shall lie from a decree passed by the Court with the consent of the parties. It is further submitted that after amendment of 1976 as per Order XXIII Rule 3A 'No Suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful'. It is further submitted that while deleting Order XLIII Rule (1)(m), simultaneously Order XLIII Rule 1A is introduced by the amendment of 1976 and right has been conferred to challenge non-appealable orders in appeal against decrees and it is so provided that in a 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. It is submitted by Mrs. Mehta, learned Advocate that Order XLIII Rule 1A is in Order XLIII itself which is with respect to Appeal from Orders and the appeal mentioned under Order XLIII Rule 1A should be construed as Appeal from Order and not appeal as provided under Section 96 of the CPC. It is submitted that if intention of the legislature was to consider Appeal under Section 96 of the CPC, in that case, said provisions under Order XLIII Rule 1A would have been either in Order XLI of the CPC or in Section 96 itself. Therefore, it is submitted that Appeal from Order under Order XLIII Rule 1 and 1A is maintainable and not Appeal under Section 96 read with Order XLI of the CPC as contended on behalf of the respondents herein.
6. Mrs. Mehta, learned Advocate appearing on behalf of the appellants has relied upon the decision of the Hon'ble Supreme Court in the case of Puspha Devi Bhagat v. Rajinder Singh and Ors. reported in : AIR2006SC2628 . Relying upon the said decision, it is submitted that as observed and held by the Hon'ble Supreme Court in the said decision- (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of Clause (m) Rule 1, Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A. It is further held in the said decision that a consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not.
7. Mrs. Mehta, learned Advocate appearing on behalf of the appellants has further submitted that the appeal under Section 96 of the CPC is maintainable only when there is decree by the competent Court on adjudication and in the present case, decree is not passed by the learned trail Court on adjudication but on the basis of the consent terms, therefore, as there is no decree on merits on adjudication, even otherwise appeal under Section 96 of the C.P.C. would not be maintainable. By making above submissions and relying upon aforesaid decision, it is requested to entertain present Appeal from Order by holding that appeal under Section 96 is not maintainable and Appeal from Order under Order XLIII Rule 1A would be maintainable.
8. Heard the learned Advocates appearing on behalf of the respective parties.
9. Short but interesting question of law which is posed for consideration of this Court is whether on the basis of consent terms which is subsequently disputed and objected to by the parties to the said compromise, when subsequently decree is passed, whether appeal under Section 96 of the CPC would be maintainable or whether such judgment, decree and order can be challenged in Appeal from Order under XLIII Rule 1A of the CPC.
10. In the case on hand consent terms / compromise was submitted at Exh.600 between the original plaintiffs on one side and defendant Nos. 1/1 to 1/3, defendant No. 2, 5 and 7 on other side. It appears that thereafter consent terms were recorded but no decree was drawn on the basis of said consent terms. Remaining defendant Nos. 8 to 15 submitted their written objections vide Exh.603 and plaintiffs also submitted their counter reply to said Exh.603 vide Exh.604. That thereafter, before any decree could be drawn on the basis of such consent terms, original defendant Nos. 2 and 5 to 7 submitted aforesaid respective applications with the prayer to the learned trial Court not to pass decree against them on the basis of said consent terms / compromise submitted at Exh.600. That thereafter, one another compromise came to be submitted before the learned trial Court arrived at between the original plaintiffs and remaining defendant Nos. 8 to 15 and said consent terms was recorded by the learned trial Court below Exh.634 and Exh.635 and in spite of above objections by defendant Nos. 2, 5 to 7, the learned trial Court passed decree against appellants herein - original defendant Nos. 2 and 5 to 7 on the basis of consent terms at Exh.600 by observing that once consent terms are recorded by the Court, the Court has no other alternative or option but to pass decree on the basis of said consent terms. Accordingly learned trial Court has drawn the decree. Being aggrieved and dissatisfied with the said judgment, decree and order, the appellants herein - original defendant Nos. 2 and 5 to 7 have preferred present Appeal from Order. Now after amendment of 1976 in the Code of Civil Procedure as per Sub-section (3) of Section 96, no appeal shall lie from the decree passed by the Court with the consent of the parties. After amendment of 1976 in Code of Civil Procedure as per Order XXIII Rule 3A - it is provided that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Prior to the amendment of 1976 in the Code of Civil Procedure, Order XLIII Rule 1(m) reads as under:
(m) an order under Rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction
After 1976 amendment Order XLI Rule 1(m) is deleted.
Simultaneously by introduction of Order XLIII Rule 1A, right has been conferred to challenge non-appealable orders against decree and as per Order XLIII Rule 1A(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. Thus, while taking away right under Order XLIII Rule 1(m), right has been conferred as so provided under Order XLIII Rule 1A(2). Now the question is whether the appeal is maintainable under Section 96 or Appeal from Order is maintainable.
11. Identical question came to be considered by the Hon'ble Supreme Court in the case of Kishun (supra). In the said case before the Hon'ble Supreme Court, One Ram Charan had two sons, Ram Kishun called Kishun and Ram Prasad called Behari. On 22-09-1966, Ram Charan gifted a piece of agricultural land to his son Kishun by way of a deed of gift. Thereupon, Behari filed a suit for cancellation of that gift impleading Kishun as defendant No. 1 and his father Ram Charan, as defendant No. 2. It was contended that the property was joint family property and hence could not be gifted by the father Ram Charan and that in any event the deed of gift was got executed by Kishun, by practising fraud. Kishun and Ram Charan filed written statement denying the claim of Behari. Pursuant to the deed of gift in his favour, Kishun had approached the Tehsildar for effecting mutation. It is claimed by Behari that before the Tehsildar, a compromise was entered into and an application for recording the compromise was moved. Under the compromise, according to Behari, the parties agreed that the property would be taken half and half by the two brothers. Since this compromise set up by Behari was not accepted by Kishun and Ram Charan, the Tehsildar did not pass any final order either in respect of the compromise or in respect of the dispute. In the suit, Behari filed an application under Order XXIII, Rule 3 of the Code of Civil Procedure asserting that there was a compromise of the dispute between the parties and that the same may be accepted and the seal of approval affixed thereon by the court. Thereafter, the trial court held that there was no valid compromise or adjustment of the dispute between the parties. Hence, it rejected the application filed by Behari under Order XXIII, Rule 3 of the Code. An appeal against the order rejecting the application under Order XXIII, Rule 3 of the Code was filed by Behari before the First Appellate Court. Such an appeal was provided by Order XLIII, Rule 1(m) of the Code as it stood before the amendment, by Act 104 of 1976, dropping Clause (m). The Appellate Court, set aside the order of the trial court and directed, that the trial court should proceed with the matter in terms of the compromise petition moved before the Tehsildar and relied on by Behari in the suit. This decision was challenged by Kishun in a revision. While this revision was pending, the trial court passed an order implementing the direction of the appellate court and decreeing the suit in terms of the compromise petition said to have been filed before the Tehsildar. Kishun challenged the decree in the suit based on the alleged compromise, by way of an appeal before the court of the Additional District Judge. The Additional District Judge held that it was not proved that there was a lawful compromise of the dispute. He took the view that the remedy open to Behari was to approach the revenue court and get his title and interest in the agricultural land declared. Thus, the compromise decree passed by the trial court was effectively set aside. Behari filed a second appeal before the High Court of Allahabad challenging the decision of the Additional District Judge. High Court of Allahabad allowed the second appeal on the ground that the appeal against the compromise decree filed by Kishun before the Additional District Judge, was not maintainable in view of Section 96(3) of the Code which provides that no appeal shall lie from a decree passed by the court with the consent of parties. The High Court, therefore, held that the First Appellate Court had no jurisdiction to entertain the appeal and to allow the same. Being aggrieved and dissatisfied with the same, Kishun approached Hon'ble Supreme Court and in para 6 the Hon'ble Supreme Court has held as under:
6. That apart, we are of the view that the High Court was in error in holding that the appeal filed by Kishun against the decree of the trial court accepting a compromise which was disputed by him, was not maintainable. When on a dispute in that behalf being raised, an enquiry is made (now it has to be done in view of the proviso to Order XXIII Rule 3 of the Code added by Act 104 of 1976) and the suit is decreed on the basis of a compromise based on that enquiry, it could not be held to be a decree passed on consent within the meaning of Section 96(3) of the Code. Section 96(3) contemplates non-appellability of a decree passed by the court with the consent of parties. Obviously, when one of the parties sets up a compromise and the other disputes it and the court is forced to adjudicate on whether there was a compromise or not and to pass a decree, it could not be understood as a decree passed by the court with the consent of parties. As we have noticed earlier, no appeal is provided after 1-2-1977, against an order rejecting or accepting a compromise after an enquiry under the proviso to Order XXIII, Rule 3, either by Section 104 or by Order XLIII, Rule 1 of the Code. Only when the acceptance of the compromise receives the imprimatur of the court and it becomes a decree, or the court proceeds to pass a decree on merits rejecting the compromise set up, it becomes appealable, unless of course, the appeal is barred by Section 96(3) of the Code. We have already indicated that when there is a contest on the question whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96(3) of the Code could not have application. An appeal and a second appeal with its limitations would be available to the party feeling aggrieved by the decree based on such a disputed compromise or on a rejection of the compromise set up.
12. Thus, the Hon'ble Supreme Court has categorically and specifically observed and held that when there is contest on the question whether there was a compromise or not, a decree accepting the compromise or resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. It is further observed and held by the Hon'ble Supreme Court that an appeal and a second appeal with its limitations would be available to the party feeling aggrieved by the decree based on such a disputed compromise or on a rejection of the compromise set up. In view of above clear proposition of law laid down by the Hon'ble Supreme Court against the impugned order and decree, an appeal under Section 96 of the Code of Civil Procedure would be maintainable and there would not be bar under Section 96(3) of the Code of Civil Procedure.
13. Now so far as the reliance placed by the learned Advocate appearing on behalf of the appellants on the decision of the Hon'ble Supreme Court in the case of Puspha Devi (supra) is concerned, it is to be noted that in the said decision firstly the Hon'ble Supreme Court has not considered decision of three Judges Bench of the Hon'ble Supreme Court in the case of Kishun (supra). Apart from that even in the said decision, the Hon'ble Supreme Court had no occasion to consider provisions of Order XLIII Rule 1A of the Code of Civil Procedure and the Hon'ble Supreme Court has not considered Order XLIII Rule 1A of the Code of Civil Procedure. Even considering the facts before the Hon'ble Supreme Court in the case of Pushpadevi (supra), it appears that there was no such dispute raised before the decree came to be passed on the basis of consent terms / compromise as so raised in the present case. It cannot be disputed that when there is consent decree on the basis of comprise and no objections are raised prior to decree is drawn on the basis of consent terms, naturally bar under Sub-section (3) of Section 96 of the Code of Civil Procedure would come into apply and even suit would not be maintainable considering Order XXIII Rule 3-A of the Code of Civil Procedure. Even otherwise it is to be noted that decision of the Hon'ble Supreme Court in the case of Pushpadevi (supra) is of Two Judges Bench and decision of the Hon'ble Supreme Court in the case of Kishun (supra) is of Three Judges Bench. Therefore, decision of the Larger Bench in the case of Kishun (supra) would be binding to this Court.
14. Now so far as the submission of Mrs. Mehta, learned Advocate appearing on behalf of the appellants that decree in question is not passed on merits after adjudication and therefore, same cannot be said to a decree attracting Section 96 of the Code of Civil Procedure. It is submitted that only in a case where a decree is passed by the Court on merits and after adjudication, then and then only appeal under Section 96 of the Code of Civil Procedure would be maintainable. Such submission requires to be rejected outright. Decree is defined under Sub-section (2) of Section of the Code of Civil Procedure and as per Sub-section (2) of Section 2 of the C.P.C., 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Thus whenever, decree is drawn by the Court by conclusively determining the rights of the parties with regard to all or any of the matters in the controversy in the Suit, same can be termed as decree and in that case, against decree appeal under Section 96 of the Code of Civil Procedure would be maintainable. Thus, whenever after adjudication of merits and/or on the basis of the consent terms, decree is drawn conclusively determining rights of the parties with regard to all or matters in the controversy in the suit, same can be said to be decree as so mentioned in Section 96 of the Code of Civil Procedure.
15. Considering above, and decision of the Hon'ble Supreme Court in the case of Kishun(supra) and when prior to decree is drawn by the learned trial Court when dispute is raised with respect to consent terms / compromise and some of the parties to the said consent terms / compromise raised objections and requested not to pass decree on the basis of said consent terms and in spite of that when judgment, order and decree is passed on the basis of said consent terms, appeal as provided under Section 96 of the Code of Civil Procedure would be maintainable and there will not be any bar under Sub-section (3) of Section 96 of the Code of Civil Procedure.
16. Under the circumstances, present Appeal from Order is not maintainable and same is dismissed as not maintainable with a liberty in favour of the appellants to challenge the same by way of substantive appeal under Section 96 of the Code of Civil Procedure.
17. In view of dismissal of present Appeal from Order as not maintainable, no orders in Civil Application No. 10303 of 2007 and Civil Application No. 10951 of 2007 which are for stay and for additional evidence.