Shiv Dayal, J.
1. This is an appeal under Order 43, Rule 1 (m) of the Code of Civil Procedure from an order recording a compromise which is challenged as fraudulent, unauthorized and illegal.
2. The material facts arc that on 20-9-1955, the appellant instituted a suit in the Court of the District Judge for sale of mortgage property for the recovery of Rs. 22,871-11-0 and consequential reliefs. The defendants Parma, Tulsiram, Ballabh Das and Smt. Narayani were the mortgagors while Badrilal defendant No. 5 was the subsequent mortgagee. On 28-12-1955, the first four defendants filed their written statement and on 30-12-1955, Badri Lal filed his written statement. 27-1-1956 was then fixed for the framing of issues.
3. However, on 4-1-1956 a compromise petition was made wherein it was stated that the plaintiffs and the defendants Nos. 1, 2, 3 and 4 had arrived at a private settlement, that the plaintiffs had received from the defendants the amount of the claim and it was prayed that the suit be dismissed in full satisfaction. This was signed my Raghunath Das Goel, Mnkhtar Am of the plaintiffs by the first four defendants and by the counsel for those defendants. The additional District Judge recorded the compromise and by a separate judgment dismissed the suit on its basis that very day.
4. To this appeal, against the order recording the compromise, two preliminary objections are raised by Shri Shejwalkar. It is first contended that the order recording the compromise was a consent order and as such no appeal lay. Learned counsel relies on the decision in Onkar Bhagwan v. Gamna Lakhaji and Co., AIR 1933 Bom 205, where it is held that where there has been no contest in the court below, but an application for compromise has been put in and is recorded and a decree is passed in its terms no appeal lies either against the decree itself, an appeal there from being barred under Section 96(3), or against the order under Order 43, Rule 1 (m), since there are no materials for adjudication. This was followed in Amarnath Radharam v. Smt. Malan, AIR 1954 Punj 259. In these cases, the proper remedies open to the aggrieved party were suggested. With great respect I cannot agree with that view. The question whether an appeal is patent or not does not depend upon the availability of other remedies. I shall therefore, proceed to examine whether this appeal falls within the purview of Order 43, Rule 1 (m) or not. The sub-clause runs thus :
'(m) an order under Rule 3 of Order XXIII recordingor refusing to record an agreement compromise or satisfaction'.
5. This sub-clause specifically centers a right of appeal against an order recording a compromise or satisfaction and does not qualify it by any restrictions or conditions as to the nature of that order--it may have been passed after contest or without contest. In my view the order is appealable irrespective of whether a consent decree followed it or not. It is obvious enough from the scheme of the Cods that there is a distinction between a consent decree arid a consent order. Whereas Section 96(3) of the Code bars an appeal against a consent decree, no such provision is found in Section 104 or in Order 43, Rule 1 of the Code.
The framers of the law had in their mind the distinction between an order recording a compromise and a final decree passed in accordance therewith. Clause (m) of Order 43, Rule 1 being unqualified, the right of appeal cannot be denied on the ground that there was no contest in the Court below. It will be different matter altogether whether in the absence of adequate material on record the appellants will be entitled to a substantial relief in the appellate Court. In the view, that I am taking I am supported by the decisions in Ramanarayana v. Rama Krishnarao AIR 1936 Mad 385 and Jialal Raina v. Prithvi Nath Raina, AIR 1954 J and K 54. In Jagdish Narain v. Rasul Ahmad, AIR 1952 All 29 it was held :
'When the consent upon the basis of which a decree has been passed by the Court is itself challenged in the Court of appeal it cannot be taken for granted that the decree was a consent decree. A consent decree must mean a decree validly consented to either by the party himself or by his duly authorized agent. If the question raised is that the agent who consented to the decree was not duly authorized, the question has to be decided and it cannot be prejudged by holding that because on the fact of it there was a consent decree, no appeal lies to the appellate Court.'
6. The argument remains that if a compromise as recorded without any dispute and an appeal is preferred, on extraneous grounds, the appellate Court will in the absence of necessary materials, find itself unable to decide the controversy. But that does not mean that the appeal can be dismissed as incompetent. Whether an appeal lies or not is quite independent of whether it can be allowed or not.
7. The second preliminary objection is that since there is no appeal from the decree, this appeal cannot be heard because the order recording the compromise merged in the decree. In my opinion this objection too has no force. Just because the Court passes a decree in terms of the compromise the right to prefer an appeal against the order recording it cannot be taken away. To hold otherwise will mean that the statutory right of a party under Order 43, Rule 1 (m) can be frustrated by passing a decree forthwith. Here again I am supported by several decisions, for instance, Damodar Saha v. Aswin Kumar Saha, AIR 1934 Cal 846; Satyanarayanamurthi v. Jayanti Butchayya, AIR 1925 Mad 606; and Mahomed Idris v. Mohammad Habibur Rahman, AIR 1948 Pat 97. In the last mention case it was held:
'Section 96(3) clearly bars any appeal from a decree passed on consent. There is a difference between an appeal against an order recording a compromise and an appeal against the decree passed thereon. The right of appeal provided by Order 43, Rule 1 (m) is not lost by reason of a decree having been prepared; Sabitri Thakurain v. F.A. Savi, AIR 1929 Pat 318 and Sabitri Thakurain v. F.A. Savi, AIR 1933 Pat 306, Rel. on.'
8. Both the preliminary objections are therefore ruled out.
9. Shri Gupta for the appellants first of all assails the order under appeal as one made without jurisdiction, being in disregard to Order 23, Rule 3. C.P.C.
It is urged that in order to call it a compromise it must contain its terms. In support of his argument he relies on an interlocutory order passed by the M. B. High Court in First Appeal No. 32 of 1951 (Gwalior Bench) Pannalal v. Molilal. In my opinion that case is clearly distinguishable, because there although a compromise petition had been filed, it was subsequently withdrawn by others except one who insisted on its being recorded. The learned Judges of the Division Bench refused to record the compromise and in that order they observed :
'In my opinion the application made by the respondent Battelal cannot be taken as one under Order 23, Rule 3. That application merely states that the appellant in pursuance of a compromise has agreed to have the appeal dismissed. It dues not narrate the terms of the compromise and does not even say that the only term of the compromise was that the appellant should get the appeal dismissed with certain directions as to costs is this Court and in the Court below. It only prays for the dismissal of the appeal without any further relief. The mere fact that the respondent has stated in the application dated 3-1-1958 that the compromise be recorded and the appeal be dismissed cannot make the application one under Order 23, Rule 3 when it does not state that the suit has been adjusted wholly or in part or that the appellant's claim has been wholly or partly satisfied and when the term or the compromise according to which the decree is to be passed have not been stated.'
In this case the position is quite different because here it was clearly stated in the compromise petition that the plaintiffs had received from the defendants the amount of the claim and that the suit be dismissed in full satisfaction. In my opinion it is not correct to say that a compromise cannot be recorded under Order 23, Rule 3 unless the manner in which the compromise is arrived is also stated. The argument of Shri Gupta that because in the compromise petition in the present case, it was not stated when and how and by whom and to whom the money was paid, it could not be treated as a compromise, is not supported by any authority or any provision of law.
10. Next it is maintained that the compromise petition could not be treated as one under Order 23, Rule 3, C.P.C. because all the parties to the suit did not subscribe to it. It is true that Badrilal defendant No. 5, the subsequent mortgagee, was left out but it must be taken into account that the prayer in the petition was for dismissal of the suit as the claim had been fully satisfied. In my opinion since the compromise did not adversely affect Badrilal's interest, in spite of him the compromise could be recorded, Sachidanand v. Vidya Narasingha, 54 Ind App 111: (AIR 1927 PC 57), may be referred to.
11. This brings me to the main contentions in this appeal. It is alleged that since in the power of attorney Raghunathdas Goel was not authorized to deal with immovable properties of the principal and this suit was one For sale of immovable property he could not file the compromise petition; secondly, since his power of attorney was revoked on 27-12-1955, he could not file the compromise petition on 4-1-1956; and thirdly not a single pie had been paid to the plaintiffs and the whole thing was actuated byfraud. On a perusal of the power of attorney, a printed copy whereof is on the record, the first point does not prima facie appear to be correct. And there is no material before us to uphold the other allegations.
The learned counsel urges that the affidavit filed by the appellant in this Court together with appeal should be treated as correct unless it is controverted by the opposite side and, further, that this Court should under Order 41, Rule 27, C.P.C. enter into an inquiry or direct the trial Judge to do it. I find myself quite unable to accept any of these courses. It was open to the appellant to move the trial Judge by a petition for review or to invoke his inherent powers. An inquiry was then possible. He did not take recourse to either of those remedies. Nor do I see any case for exercising the discretionary power under Order 41, Rule 27. C.P.C. It is all the more so, because admittedly the appellant has already instituted a regular suit for setting aside the decree on the ground of fraud. All the questions in controversy between the parties both of fact and law will be fully determined there.
12. Shri Gupta relies on William v. Preston, (1882) 20 Ch D 672. I do not see how that decision helps the appellants. In that case, a solicitor had put in a fraudulent defence for his client without the knowledge of the client, making admissions, on which judgment was obtained against the client. It was held that the Court had jurisdiction to set aside the judgment and permit the client to withdraw his defence. From the report it appears that an appeal was taken against that judgment by Mrs. Elliott, 'and at the same time moved that the action might be reheard and that she might be at liberty to withdraw her defence and to deliver fresh defence and to adduce fresh evidence', (See page 673). The ground for the 'application' was that -- Preston had no authority to borrow any money from the plaintiff on her behalf and that he had acted fraudulently and without authority in putting in statement of defence and suffering judgment. It was observed :
'We are all satisfied that this being a case of rehearing we have jurisdiction to grant this application and that if the allegations of fraud should be established we ought to exercise it.'
(Page 674) A date was fixed for further hearing of the case and evidence of fraud was allowed to be produced. On the date so fixed, after hearing the witnesses the Court came to the conclusion that the defence had been put in fraudulently. Leave was, therefore, given to have a rehearing of the action and for Mrs. Elliott to put in a new statement of defence. At the request of both parties the Court reheard the action at once and a fresh judgment was given for Mrs. Elliott and the action was dismissed with costs. From all this it is very clear that it was not the appellate Court which reheard or recorded evidence in that case, the proceedings were for rehearing that is, in the same Court, and not in the appellate Court. It is not clear from the report what the result of the appeal was; presumably it must have become infructuous.
13. At the time of the hearing of this appeal an application is made before us on behalf of the appellants for leave to withdraw the compromise petition dated 4-1-1950, filed before the Additional District Judge. It is not known under what provision of law that application is made, but the learned counsel relies on Yeshwant Govardhan v. Totaram Avasu, AIR 1958 Bom 28, where it is held:
'It is open to a plaintiff to withdraw his application for withdrawal of his suit so long as the withdrawal his not become effective by an order of theCourt.'
There can be no quarrel with this proposition butit does not help the appellants because in this casethe compromise was in fact recorded and a decreewas passed on its basis.
14. For these reasons, the appeal is dismissed, leaving the parties to bear their own costs.
15 A. H. KHAN, J. : I agree.