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Deorao Vs. Devkinandan Bhojaj Chandak and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Reven. Appln. Nos. 305 and 306 of 1980
Judge
Reported in(1984)86BOMLR264; [1985]58CompCas267(Bom); 1984MhLJ439
ActsCode of Civil Procedure (CPC), 1908 - Sections 96(1) and 96(3) - Order 43, Rule 1A and 1A(2)
AppellantDeorao
RespondentDevkinandan Bhojaj Chandak and anr.
Appellant AdvocateV.A. Nsik, Adv.
Respondent AdvocateL. Mohta, Adv.
Excerpt:
it was adjudged that where a decree had been passed in a suit on the basis of a compromise alleged to have been arrived at between the parties, an appeal against the decree disputing such a compromise was maintainable as an appeal against decree under section 96(1) of the civil procedure code, 1908 and would not be hit by section 96(3) of the code- however such an appeal was not maintainable under order 43, rule 1a(2) of the code. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292,..........submitted that sub-rule (2) of r. 1a of o. xliii of the code contemplates an appeal even against a decree passed in a suit after recording a compromise, assuming that the appeal is barred under s. 96(3) of the code, she further contended that at any rate if the validity of a compromise itself is challenged in the appeal, it would not be an appeal against a decree with the consent of the parties and would not come within the mischief of sub-s. (3) of s. 96 of the code. she submitted that even though appellant deorao, while filing the appeals, had styled them as appeals under )o. xliii, r. 1a of the code in the cause title of the appeal momos, the learned appellate judge ought to have treated these appeals as under s. 96 of the code and ought to have disposed them of as such holding that.....
Judgment:
ORDER

1. Since a common question of law is involved in both these Revision Application. They are being disposed of by on judgment. The facts leading to these revision applications, stated briefly, are as follows.

2. Devkinandan Bhojarj, non-applicant in Civil Revision Application No. 305 of 1980, had filed a suit against Deorao Patilbuwa Raut who is applicant in both Civil Suit No. 276 of 1978 in the Court of the Civil Judge, Junior division at Malkapur for recovering an amount of Rs. 10,150/- Defendant Deorao appeared in that suit through a counsel. On 17-10-1979, the Counsel for the plaintiff and the counsel for the defendant in the suit filed an application for recording a compromise as stated in the sadi application and for drawing up a decree accrodingly. Both the counsel stated below their signatures that they had authority to compromise. The learned Civil Judge allowed the application and passed a decree in terms of the compromise. Being aggrieved by this decree. Defendant deorao preferred an appeal in the District Court at Buldana being Civil Appeal No. 255 of 1979.

3. Bhagwandas, non-applicant in Civil Revision Application No. 306 of 1980, had also instituted a suit against applicant Deorao being Regular Civil Suit No. 277 of 1978 in the Court of Civil Judge Junior Divisional Malkapur for recovering an amount of Rs. 8, 300/- Deorao appeared through a counsel. As in the other suit so in this suit also, on 17-10-1979, both the counsel filed an application for recording a compromise and passing a decree accordingly. This application appears to have been signed by plaintiff Bhagwnadas himself, while it was signed by the counsel for defendant Deorao. By his order passed by the learned Civil Judge onl the application of the same day, he accepted the compromise and directed a decree to be drawn accoridingly. Being aggrieved by this decree, accordingly. Being aggrieved by this decree, defendant Deorao preferred an appeal in the District Court at Buldana being Civil Appeal No. 254 of 1979.

4.. Both the above said appeals were heard together by the learned District Judge. On behalf of the respondents in both these appeals, namely, Devkinaandan and Bhagwandas, objection was taken to the maintainability of the appeals on the ground that decrees against which these appeals had been filed being consent decrees no appeal could lie against them as provided. By sub sec. (3) of s. 96, Civil P. C. 1908 (hereinafter referred to as the Code') On behalf or appellant Deorao in both these appeals, it was contended that even assuming that the appeals were barred by S. 96(3) of the code, the appeals could be filed and maintained under R. 1A of Order XLIII of the Code. Ther learned District Judge, by a common judgment delivered on 19-2-1980, upheld the contention of the two respondents and held that the appeal having been filed against decrees passed by the Lower Court 'with the consent of both the sides' were not maintainable, inasmuch as they were prohibited specifically by s. 96(3) of the Code, In the view which he took, he rejected the appeals and it is against this order of rejection of the appeals that the present revision application have been filed by the appellant in those two appeals.

5. Mrs. V. A. Naik, the Learned Counsel for the appl.cant in both these revision appliccant, submitted that sub-rule (2) of R. 1A of O. XLIII of the Code contemplates an appeal even against a decree passed in a suit after recording a compromise, assuming that the appeal is barred under S. 96(3) of the Code, She further contended that at any rate if the validity of a compromise itself is challenged in the appeal, it would not be an appeal against a decree with the consent of the parties and would not come within the mischief of sub-s. (3) of s. 96 of the Code. She submitted that even though appellant Deorao, while filing the appeals, had styled them as appeals under )O. XLIII, R. 1A of the Code in the cause title of the appeal momos, the learned appellate Judge ought to have treated these appeals as under S. 96 of the Code and ought to have disposed them of as such holding that appeals not being against a consent decree were tenable under sub-sec. (1) of s. 96 of the Code.

6. Mr. L. Mohta, the learned Counsel for the non-applicants in both these revision applications, however, supported the view taken by the learned appellate Judge and submitted that r, 1A of O. XLIII of the Code itself does not confer a right of appeal against the order recording a compromise but what it merely says is that in an appeal filed against d decree, it would be open to the appellant to challenge to decree on the have been recorded. Mr. Mohta submitted that even if the appellant challenges the validity of the compromise, the decree drawn up on the basis of the alleged disputed compromise does not cease tot be a decree passed by the court with the consent of the parties within the meaning of sub-sec. (3) of s. 96 of the code and hence an appeal against such a decree would be barred by the provisions of that sub-section.

7. the question which, therefore, falls for consideration in these two revision applications is as to whether an appeal can lie against a decree which has been passed on the basis of a compromise alleged to have been arrived at between the parties when in appeal, the appellant disputes such a compromise.

8. the submission made on behalf of the applicant that an appeal challenging ot disputing the recording of a compromise can lie as provided for in sub-rule (2) of r. 1A of ). XLIII of the Code does not appear to be tenable. Rule 1A is in the following terms;

'1A. (1) where any order is made under this code against a party and thereupon 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 aginst 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.'

A plain reading of sub-rule (2) of R.1A would indicate that it postulates an appeal against a decree for its operation. In other words, sub-rule (2) of r. 1A of O. XLIII would come into operation only in an appeal against a decree passed in a suit after recording or refusing to record a compromise. This sub-rule only enables the appellant to contest the decree on the ground that a compromise should, or should ;lnot, have been recorded. The ,..............sub-rule 92) of r. 1A, contrasted with the opening words of R. 1of o. XLIII, clearly indicates that R. !A does not contemplate conferring a right of appeal as in done under r. 1 of O. XLIII. As said above, R. 1A is merely an enabling provision entitling the appellant in an appeal against a decree to dispute or to challenge the orders passed in the suit which are not otherwise appealable under r. 1 of O. XLIII. Rule 1A has been inserted by the amending Act of 1976 in all probability to dispel any doubt as to whether in an appeal against a decree it is open to the appelant to contend that order which is otherwise not appealable and which is the basis of the judgment pronounced against him leading to the drawing up of a decree, should not have been made and judgment should not have been pronounced or that a compromise should or should not, have been recorded. In this connection, it may be noted that prior to the amendment of the code by the amending Act of 1976, CI. (m) of R. 1 of O. XLIII provided ;for an appeal against an order under R. 3 of O. XLIII recording or refusing to record an agreement, compromise or satisfaction. This clause has been deleted by the amending Act of 1976 with the result that now no appeal can lie against such an order. It appears that it is in order to make the position clear that even though no appeal lies against such an order after the amendment of 1076 it would be open to the appellant to dispute the validity of the order in an appeal against the decree, that sub-rule (2) of R. 1A has been enacted. This sub-rule has, therefore, to be understood in the background of this legislative history. It is not therefore possible to agree with the learned Counsel for tha applicant that sub-rule 92) of r. 1A of O. XLIII confers a right of appeal on a party which is dissatisfied wih the order passed by the trial court recording or refusing to record a compromise.

9. The question then is whether such an appeal can lie under S. 96 of the code when a compromise is accepted by the court and a decree is drawn up accordingly. If an appeal has to be filed against, it, it would be against the decree jurisdiction, an appeal would normally lie under sub-rule (1) of s. 96 of the Code, However, sub-s. (3) of S. 96 says that no appeal shall lie form a decree passed by the court with the consent of parties. Now it can be said that if a decree is drawn up on the basis of a compromise which has been recorded by the Court it is a decree passed with the consent of parties and hence it would be hereby sub-s. (3) of S. 96 of the code debarring the aggrieved party from preferring an appeal under S. 96(1) If this view is upheld, a party; which intends to challenge the very recording of the compromise and consequent drawing up of a decree would be left without any remedy, since CL. (m) of r. 1 Of O. XLIII, which as seen above permitted such a party to file an appeal, is not now available after the amendment of 1976 and R. 3A of O. XLIII which has also been inserted by the amending Act of 1976 bars a suit to set aside a decree on the ground that the compromises on which the decree is based was not ;lawful. It would, therefore, appear that a person who feels aggrieved bya Court under R. 3 of O. XXIII would be left without any remedy at all. It is in this background that we have to construct the language of subs. (3) of S. 96 of the Code.

10. In my view, sub-s. (3) of S. 96 would not debar these appeals which are filed against a decree in which the appellant does not dispute the recording of a compromise. In other words, if the appellant files the appeal accepting the decree as having been passed with the consent of parties, then, sub-s. (3) OF s. 96 would debar such an appeal. However, in myview, this sub-section would not operate if the appellant disputes the very fact of the decree having been passed with the consent of the parties. If such a dispute is raised in the appeal itself, then it would not be hit by the provisions of sub-s. 93) of s. 96 of the Code and in that case, it would be tenable as an appeal, against a decree as provided by s. 96(1) of the code.

11. In the present case, the applicant sought to challenge the decree passed in the above said two suits on several ground .....................suit. If that is so, he does not admit that the decrees against which the appeals have been filed were passed with the consent of the parties and in that view of the matter, the two appeals ought to have been treated as appeals lying under s. 96(1) of the Code. The bill of costs appended to the judgment of the appellant Court in each appeal would show that court-fee had been paid by the appellant in each appeal onl the basis of tis being a regular appeal and not a miscellaneous appeal under O. XLIII . If that was so, there was no difficult onl the entertained the appeals as a regular appeal provided under s. 96(1) of the Code, In the view which I take, the revision applications would have to be allowed and the lower appellate Court would have to be directed to dispose of the appeals on merites as being tenable.

12. In the result, both lthe revision applications are hereby allowed and the order passed by the lower appellate Court in both the above said appeals is hereby set aside the that court is herby directed to dispose of the appeals to merits. The costs of these revision applications shall be costs inl the appeals.

13. Revisions allowed.


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