Shiv Dayal, J.
1. This appeal has been filed from an order dismissing the defendants' appeal under Order 43, Rule 1, Civil Procedure Code, which appeal was preferred from an order recording compromise under Order 23, Rule 3, C. P.C., in these circumstances.
2. Mst. Toranbai (respondent) instituted a suit against the appellants for a declaration that she was the wife of Asaram, who was a Police Constable and was killed on the frontiers, when on duty, so that she was entitled to succeed to the pension which became payable, but since Bhutnath (defendant No. 1) opposed her claim, she filed a suit for declaration.
3. The parties are related as follows:--
UMEDI (dead) = Suhatabai (Deft. 3)
| | |
Bhutnath Adhin Asaram
(Deft. 1) (Deft. 2) (deceased)
= Toranbai (plff.)
4. On December 12, 1961, the plaintiff offered a special oath to the defendants. Bhutnath accepted the oath. However, the trial Court did not act upon it immediately but fixed 13th December for pronouncing its judgment. However, immediately thereafter the parties filed a compromise petition.That compromise was recorded on the same day, that is, December 12, 1961. Each one of them acknowledged to have entered into the compromise and to have accepted its terms. The trial Court then delivered its judgment in accordance with the compromise and directed a decree to be drawn up accordingly.
5. The defendants preferred an appeal contending that the compromise was an outcome of coercion perpetrated by the plaintiff and her helpers on the defendants. They were forced by them to enter into the compromise. On certain other grounds, the compromise was attacked as not lawful and further it was contended that the property other than the subject-matter of the suit was included in the compromise so that it could not form a part of the decree. The first appellate Court rejected all the objections, except the last mentioned. In the result, the decree of the trial Court was modified to the extent that the part thereof relating to the disposal of the property mentioned therein was set aside, while the part holding the plaintiff Toranbai to be the widow of Asaram was confirmed.
6. Aggrieved by the second part of the judgment and decree of the first appellate Court, the appellants preferred this second appeal.
7. What the defendants challenge here is the order recording the compromise under Order 43, Rule 1 (m), C.P.C. An order recording compromise is appealable, but no second appeal lies. It appears that since the defendants challenged the order recording compromise and also the decree passed in accordance with it, they preferred a regular appeal and paid ad valorem court-fee. From the order recording compromise, an appeal lay under Order 43, Rule 1, C.P.C., but from the decree an appeal lay under Section 96, C.P.C. However, in this Court the grievance of the defendants is confined to that part of the order of the trial Court whereby the compromise was recorded. No second appeal lies from an order recording or refusing to record compromise under Order 23, Rule 3, C.P.C. But since the defendants had preferred a regular appeal in the first appellate Court, they preferred this second appeal on payment of ad Valorem court-fee. Whether this is heard as second appeal or is treated as a revision, as there is no substance in it, it must be dismissed.
8. It is first contended that the compromise was not voluntary but was an outcome of coercion. If this objection had been taken in the trial Court before the order of compromise was recorded, the trial Court would have enquired into it, but after the compromise is recorded, such an objection cannot be enquired into in those proceedings, nor by the appellate Court in an appeal under Order 43, Rule 1, C.P.C. The appellants should have pursued an appropriate remedy, if so advised. The statement of each of the defendants was recorded and each one of them acknowledged to have entered into the compromise and to have accepted its terms. The first contention is rejected.
9. It is then contended that the compromise could not be recorded inasmuch as the plaintiff offered a special oath which was accepted by Bhutnath defendant. He held the plaintiff's hand and said that she was not the wife of Asaram and, therefore, not his widow. However, the trial Court did not act immediately upon that oath but fixed the following day for pronouncing its judgment. But soon thereafter, the parties filed a compromise petition and the compromise was recorded. The effect of the special oath being accepted is that by virtue of Section 11 of the Oaths Act, the evidence so given against the person who offered to be bound by the oath becomes conclusive proof of the matter stated. Even so, it remains a piece of evidence and unless and until a judgment is pronounced on the basis of that evidence, the suit continues to be pending and the parties are at liberty to enter into a compromise and ask the Court to pass a decree in accordance with such compromise. That is what was done in the present case. The compromise having been recorded and a decree passed in accordance therewith, there was no occasion left for the Court to act upon the special oath taken by Bhutnath defendant. The second contention is therefore, rejected.
10. The third contention is that the suit itself was barred by Section 4 of the Pension Act. This contention is merely to be recorded to be rejected. The suit was not against the State for grant of pension. It was for a declaration that the plaintiff was the wife and heir of the deceased Asaram and succeeded to his estate.
11. The appeal is, therefore, dismissed with costs. Counsel's fee Rs. 50/-, if certified.