1. This is an appeal against an order of remand passed under Order 41, Rule 23, Civil P.C.
2. It appears that the plaintiffs who are the appellants in this Court instituted a suit for recovery of possession and mesne profits against the respondent who has not appeared to contest this appeal. At one stage of the trial on 19th December 1927, in the Court of first instance the parties agreed by statements made before the Court by their counsel, that they would abide by the statement of one Bhagwant Singh who was, accordingly, ordered to be summoned and the 9th January 1928 was fixed for recording his statement. The next day i.e., 20th December 1927, the defendant made an application to the Court stating that he had learnt that Bhagwant Singh was related to the plaintiffs and he would not like to be bound by Bhagwant Singh's statement. On 9th January 1928 the learned Munsif held some enquiry and came to the conclusion that the allegation that Bhagwant Singh was related to the plaintiffs was not true. The Court proceeded to take down the statement of Bhagwant; Singh and, ultimately passed a decree in the terms suggested by Bhagwant Singh as being the terms of a proper decree.
3. The defendant being dissatisfied appealed to the lower appellate Court and his appeal has been allowed. The learned Subordinate Judge held that it was open to the defendant respondent to resile from his agreement, namely, that he would abide by the statement of Bhagwan Singh. The Court directed that the case should be tried on the merits.
4. In this Court it has been contended before us that Bhagwant Singh's statement would bind the respondent even if he resiled from the position taken up on 19th December 1927. As an authority for the proposition, the case of Himanchal Singh v. Jatwar Singh A.I.R. 1924 All. 570 has been cited. In that case no exception to the statement of the referee was taken till after that statement had been recorded. The case quoted does not show that the exception to the statement of the referee had been taken before it was recorded and the case, therefore is no authority on the point which we have to decide.
5. The learned counsel has also urged that the agreement that the parties would abide by the statement of Bhagwant Singh came under the purview of Order 23 Rule 3 Civil P. C, and must be regarded as an adjustment of this suit by the parties. But this contention is against the very language of Rule 3 itself. Rule 3, Order 23 runs as follows:
Where it is proved to the satisfaction of the Court that a suit has been adjusted XXX.
6. The statement that was recorded before the Subordinate Judge on 19th December 1927 was not to the effect that parties had come to certain terms regarding the subject matter of the suit but was to the effect that they would accept certain terms which might be stated by Bhagwant Singh.
7. We do not see how the respondent could be pinned down to his statement made on 19th December 1927 that he would accept the statement of Bhagwant Singh.
8. The result is that the appeal fails and is hereby dismissed, but without cost as the respondent is absent.