1. This is an appeal by the plaintiff Putto Lal Sharma against a judgment and decree of the Senior Civil Judge, Ajmer, dated the 21st January, 1960, by which he recorded a compromise alleged to have been arrived at between the parties and dismissed the plaintiffs suit in accordance with it, leaving the parties to bear their own costs.
2. The material facts leading up to this appeal may shortly be stated as follows. The plaintiff was a building contractor at Ajmer. The defendant is Maharaja Sumer Singh, Ruler of Kishengarh which was a neighbouring independent State in 1947 and 1948. The plaintiffs case was that as a result of an agreement between the parties, he had built two palaces for the said Ruler of Kishengarh, one at Ajmer and the other at Kishengarh and had also undertaken certain other works of a subsidiary nature for the defendant, the details of which were mentioned in the plaint and that he had repeatedly asked him and a Colonel A Sharman, who was his controller of personal estates and was looking after all the personal properties of the defendant in that capacity to render a full and complete account of all the works executed by the plaintiff and to make full and final payment of such amount as may be found payable to him. The defendant, however, did nothing and so the plaintiff brought the present suit against the said Ruler of Kishengarh on the 27th June, 1955, in the Court of the Senior Sub-Judge, First Ciass, Ajmer, after obtaining the necessary sanction from the Government of India under sections 86 and 87 of the Code of Civil Procedure. The plaintiff valued his suit for the purposes of rendition of accounts at Rs. 1000/- and paid court-fee thereon accordingly while for purposes of jurisdiction, ho valued his claim at Rs. 60,000/-.
3. The defendant raised an objection that the suit was triable by a Court of lower jurisdiction on the valuation put on it by the plaintiff which was Rs. 1000/- only.
4. The learned trial Judge held that the plaint having been valued for purposes of jurisdiction at Rs., 60,000/-, the plaintiff should have put the same valuation on it for purposes of court-fee, and in this view of the matter directed him to pay court-fee accordingly and to make up the deficiency therein within a stated time. The defendant, curiously enough, preferred a revision against the above-mentioned order to the Judicial Commissioner, Ajmer, who summarily dismissed it by his order dated the 26th September, 1956. Thereafter he filed a review application to the Judicial Commissioner against his aforesaid order and that application was heard and dismissed by a Bench of this Court on the 6th November, 1959, as the State of Ajmer had by that time been integrated with this State as a result of the State Reorganiszation Act (Act XXXI of 1956).
While the defendant's review application was pending in this Court, the' plaintiff filed an application on the 2nd January, 1958, in the Court of the Senior Civil Judge Ajmer to which Court the case had been transferred meanwhile on the abolition of the Court of Sub-Judge, First Class, Ajmer, in which he stated that he did not wish to proceed with the suit and was desirous of withdrawing it, and, therefore, made a prayer that the Court be pleased to allow the plaintiff to withdraw the suit unconditionally and that the same be dismissed. This application was presented by the plaintiff Putto Lal personally before the Senior Civil Judge. As the file of the case was in the High Court in connection with the disposal of the defendant's review application, the Court ordered that the application be put up on receipt of the file for orders and also remarked that the file be requisitioned from the High Court.
5. On the 26th February, 1958, the plaintiff made another application in the trial Court stating that he did not wish to proceed with his application dated the 2nd January, 1958, and so solicited permission of that Court to withdraw his former application. This application was taken up on the same day by the then presiding Judge (Mr. Krishnanand Sharma). in the presence of counsel of both parties. It appears from the order-sheet of the 26th February, 1958, that the defendant's counsel objected to the withdrawal and asked for costs if the withdrawal was allowed. The learned Judge alloived the withdrawal by an order of the same date on payment of a sum of Rs. 30/-as costs which the defendant's counsel refused to accept.
6. On the 16th August, 1958, the defendant moved an application under Order 23 Rule 3 Civil Procedure Code stating that on the 2nd January, 1958, the suit had been compromised between the parties in the manner that the defendant would pay Rs. 6,000/- only to the plaintiff in full and final settlement of his claim and that the plaintiff would file an application under Order 23 Rule 1 Civil Procedure Code unconditionally withdrawing the suit and to get it dismissed and that the sum of Rs. 6000/- was to be paid to the plaintiff by the defendant after the former had moved an application for withdrawal, that in pursuance of the agreement aforesaid, the plaintiff had moved an application for unconditionally withdrawing the suit on that very day, that is, the 2nd January, 1958, and that the defendant had accordingly paid the plaintiff a sum of Rs. 6000/- on the 6th January, 1958, vide receipt of the same date and thus the entire suit stood finally adjusted and deserved to be dismissed. It was further stated in this application that the plaintiff had acted fraudulently in withdrawing his application of withdrawal on the 26th February, 1958, and that the defendant's counsel (Shri Swaroop Narain Advocate) was not in the know of the above facts when on the 26th February, 1958, the case was called and the Court allowed the plaintiff to withdraw the application for withdrawal of the suit.
7. The plaintiff filed his objections to this application on the nth December, 1959, after taking a number of adjournments for the purpose. In his reply, the plaintiff denied that he had ever agreed 'to compromise the claim for a sum of Rs. 6000/- only in full and final satisfaction of his claim'. He further contended that the application for withdrawal had been submitted by him before the trial Court 'under a coercion, fraud and mis-representation practised upon the plaintiff by the defendant, his agents and servants' and in paragraphs 7 to 25 of his additional pleas, he mentioned the so-called details of the fraud and misrepresentation practised on him. The plaintiff also denied that a sum of Rs. 6000/- had at all been received by him as mentioned in paragraph two of the defendant's application. It is unnecessary for the purposes of this appeal to state at length the allegations on which the plaintiff sought to support his allegation of coercion, fraud and mis-representation with respect to the alleged compromise.
8. The review petition having been dismissed by a Bench of this Court, as already stated, on the nth December, 1959, the. case then came up before the trial Court on the 18th January, 1960. The defendant then produced the original receipt alleged to have been given to him by the plaintiff, a copy of which had already been filed along with his application on the 16th August, 1958. The plaintiff was confronted with this receipt by the Court on the same day. obviously under Order 12 Rule 3-A Civil Procedure Code and he admitted his signature on it and he also admitted that the figure of Rs. 6000/- followed by the words 'six thousand only' were in his own handwriting. Thereupon the Court framed two points for determination as follows: -
(1) Is the application of the defendant under Order 23 Rule 3 Civil Procedure Code presented on the 16th August, 1958, not maintainable in law?
(2) Can the Court not entertain the pleas of fraud, mis-representation raised by the plaintiff in his reply dated the nth December, 1959?
It is obvious from the order-sheet of the 18th January, 1960,' that neither of the parties expressed any desire to the Court to lead any evidence on the points framed and they were content to have these points argued as mere matters of law. Consequently, the Court heard the arguments on the very day and reserved the case for its orders on the 21st January, 1960. On the last-mentioned date the Court decided both the points against the plaintiff and came to the conclusion that the suit stood adjusted by a lawful compromise and therefore proceeded to record it and in the result held that in view of the compromise the plaintiff's suit be dismissed. The parties were left to bear their own costs. It is against this decision that the plaintiff has now come up in appeal to this Court.
9. Now before we proceed to deal with the contentions raised before us on behalf of the plaintiff, we may briefly summarise the conclusions of the trial Court on the points raised before it. In the first place, the learned Judge held that the defendant's application dated the 16th August, 1958, under Order 23 Rule 3 Civil Procedure Code was not barred by the principle of res judicata and therefore the application was maintainable in law. In the second place, the learned Judge held that in deciding an application under Order 23 Rule 3 Civil Procedure Code, the Court was not entitled to inquire into the allegations of fraud and mis-representation inasmuch as such allegations made a contract voidable and not void. In coming to this conclusion, the learned Judge placed his reliance on Husain Yar Beg v. Radha Kishan, AIR 1935 All 137, Western Electric Co. v. Kailash Chand, AIR 1940 Bom 60 and Kuppuswami v. Pavanambal, AIR 1950 Mad 728. In the third place, the learned Judge held that having regard to the language of the receipt, there was no manner of doubt that it had been passed by the plaintiff to the defendant in full and final satisfaction of his claim. against the latter and therefore it did not lie in the mouth of the plaintiff now to say that the said, amount of Rs. 6000/- had not been received by him in full and final settlement of his claim but only as a part payment towards it. Having regard to these findings, the learned Judge came to the conclusion that the parties had in fact entered into a compromise in pursuance of which the plaintiff had actually filed an application for withdrawing the suit against the defendant on the 2nd January, 1958, and that thereafter on the sum of Rs. 6000/- having been paid by the defendant to the plaintiff in full and final settlement of his claim, the latter executed a receipt for that amount and that thereby the plaintiff's suit stood wholly adjusted, and, therefore, the plaintiff's suit deserved to be dismissed. It is significant to note that it does not seem to have been argued before the learned Judge that the sum of Rs. 6000/- had not been received by the plaintiff from the defendant although the allegation was denied in the plaintiff's reply to the defendant's application of the 16th August, 1958.
10. In this appeal, learned counsel for the plaintiff raised the following points before us:-
(1) There was no agreement or compromise in the present case in the sense that there was no writing executed by both parties to the suit nor was any buch agreement presented to the Court, and, therefore, the provisions of Order 33 Rule 3 could not at all come into play.
(2) The Court below should not have decided without allowing the parties an opportunity to lead evidence thereon that the receipt for Rs. 6000/,- on which the defendant relied was executed by the plaintiff by way of a complete adjustment or coin-promise of the suit, and that having not been done, the Court could not have felt satisfied, of the fact that the suit in question had been adjusted within the meaning of this rule.
(3) In any case, the suit could only be adjusted by a lawful agreement or lawful compromise and not by an agreement which was vitiated by coercion, fraud or mis-representation, and, therefore, the Court was wrong in not investigating and deciding the allegations made by the plaintiff with respect to the alleged compromise that it had been extracted out of him by coercion, fraud and mis-representation and such a compromise could not be recorded or made the basis of a decree. The view of the trial Court that it had no power to go into that question is not sound.
11. Now we shall deal with these points in the order in which we have set them out above.
Re. -- 1.
12. It is true that it is best if a compromise is embodied with all its terms in a document signed by all the parties and then a petition is filed to record the compromise and to pass a decree in terms thereof. But it would be going too far to hold that it is only compromises of this type which fall within the ambit of Order 23 Rule 3 and which alone can be made the foundation of a decree. Strictly speaking, even an oral compromise would be enough to attract the provisions of the rule in question though it may be difficult to prove it in actual practice. Again, even if there is a document embodying the terms cf a compromise and none of the parties has affixed his signatures to it it would still be open to any of the parties to prove that a compromise had in fact been arrived at on the terms embodied in the unsigned document and claim a decree on the footing thereof. See M. Hasnain v. Yusuf Husain, AIR 1956 All 121 and Athappa v. Periasami, AIR 1956 Mad 344. The true rule, in our opinion, is that we must look to the substance of the .matter and not to its shadow. The question, therefore, is whether there was any material properly before the Court below on the basis of which it could have come to the conclusion that a compromise had been effected between the parties in the present case. Our answer to this question is in the affirmative. That material is furnished by the receipt which, as the plaintiff admitted before the Court, had been signed by him and further he also admitted that the sum of Rs. 6000/- which was written both in figures and letters in Hindi therein had also been written out by him, though the rest of the language of the receipt was in English. To make the matter still dearer, we would reproduce the receipt in extenso bere:-
'Received a sum of Rs. 6000/- NS gtkj flQZ from His Highness Maharajadhiraji Sumeiainghji Sahib Bahadur of Kishengarh for my claim of a suit which I had filed against H. H. Kishengarh, I have applied for the withdrawal and dismissal of my suit on 2-1-1958 in the Court oi Civil and Additional Sessions judge, Ajmer, who has ordered for requisitioning of the file from the High. Court of Rajasthan, Jaipur.'
The mention in the receipt of the fact that the plaintiff had received a sum of Rs. 6000/- for his claim against the defendant in a suit which he had filed in the Court of the Civil and Additional Sessions Judge, Ajmer, and of the further fact that he had already applied for the withdrawal and dismissal of that suit on 2-1-1958, was and is enough to lead to the conclusion that this was a compromise by which the suit in question was sought to be wholly adjusted. This receipt was allegedly signed by the plaintiff, and the latter admitted that that was so before the trial Court. The defendant had produced a copy of this receipt in Court and had made along with it an application praying for the dismissal of the suit and subsequently filed the original receipt also. Can it be said under the circumstances assuming for this purpose that the other ingredients of Order 23 Rule 3 were also fulfilled that there was no compromise here so as to attract the provisions of Order 23 Bale 39 We emphatically think not. For the basic requirement of a compromise namely that the parties thereto should be in common agreement with respect to the proposed settlement of the matter which was in dispute between them and which was sought to be compromised is amply satisfied. iN this view of the matter, we find no force in this contention and hereby reject it and hold that Order 23 Rule 3 rightly came and does come into play in this case on the material which was placed before the trial Court.
Re. -- 2,
13. The substance of the grievance of learned counsel on this point appears to us to be that the learned Judge below had decided this question without allowing the parties an opportunity to lead evidence for and against it. We have given this matter our very careful and earnest consideration and have not felt persuaded to hold that there is any substance in this contention either. From the narration of the facts and the development of the case in the court below which we have already narrated, it seems to us that the matter was sought to be fought out on legal issues only. That is explained by the points for determination which were framed by the trial court in the presence of learned counsel for both the parties and' by the further fact that immediately after the points were so framed the arguments were made on the same day and the case was reserved for orders. It is not difficult for us to understand why the case came to be so conducted. As soon as the original receipt was produced by the defendant on the 18th January, 1960, the court very properly confronted the plaintiff with it whether he would admit it or not. He admitted that the document had been signed by him. He also admitted that the figure 6000/- and the mention of the same in words immediately thereafter was in his own handwriting. There was a further mention in this receipt that the plaintiff had applied for the withdrawal and the dismissal of the suit on the and January, 1958, in the court of the Senior Civil Judge, Ajmer, and such an application had in fact been presented to the court on the said date though it was later withdrawn under an objection by the counsel for the defendant. In these circumstances, it is strongly borne in (sic) on us that the plaintiff at that stage did not consider it worthwhile to contest the point which is now sought to be raised and the entire stress on his side was laid on the other points arising in the case, namely, that the application under Order 23, Rule 3 was not maintainable at all as a matter of law and that the receipt had been obtained from him by coercion, fraud and misrepresentation by the defendant and his agents, on which latter aspect of the case it clearly appears to have been urged on behalf of the defendant that this plea could not be gone into in a proceeding under Order 23, Rule 3, and this, in our opinion, sufficiently explains how the points for determination were fixed by the court below. The point that we wish to make is that if the plaintiff wished to contest the factum of compromise as contradistinguished from its validity, it was incumbent on him to have invited and insisted upon an issue to that effect in the court below. This he entirely failed to do. In view of what we have stated above, we are categorically of the opinion that it is too late in the day for the plaintiff to urge that a compromise, as a matter of fact had never been reached between the parties when the receipt dated the 6th January 1958 was executed by the plaintiff in favour of the defendant. In this view of the matter, this point also fails.
14. The question under this head relates to the other requirement underlying Order 23, Rule 3 C. P. C., namely, that the compromise was lawful and it is only then that the Court can record it. Stating the rule broadly, it is the duty of the court while acting under Rule 3 of Order 23 to see whether the agreement or the compromise is lawful. A certain amount of controversy has arisen in our Courts around the meaning of the expression 'lawful'. And the precise question with which we are faced is whether in pursuing an inquiry as to the lawfulness of an agreement or compromise, the court can and should embark on an investigation such as has been and is being demanded in this case as to whether the compromise was brought about by coercion, undue influence or fraud. We propose to examine a few cases in this connection and shall first take up the cases relied on by learned counsel for the plaintiff. These are Nandlal v. Ram Sarup, AIR 1927 Lah 546 (2), Sadajiwatlal v. Sm. Chandrani, AIR 1946 Sind 81, Misrilal v. Sobhachand AIR 1956 Bom 569 and Firm Ramchandra Mathuralal v. Kalusingh, AIR 1961 Madh Pra 245.
15. In AIR 1927 Lah 546 (2) (Supra), the Lahore High Court refused to record a compromise because it came to the conclusion that the compromise was obtained by the exercise of undue influence, and it, therefore, went on to hold that the suit was not proved to have been adjusted by a lawful agreement or compromise as required by Order 23, Rule 3. With all respect, this case does not contain any discussion on the point which is raised before us, and it seems to have been assumed that an inquiry into an allegation that the compromise had been brought about by an exercise of undue influence was contemplated by Order 23, Rule 3. It may be pointed out however at this place that a contrary view was taken in at least two Bench decisions of the Lahore High Court earlier.
In Budhu Mal v. Mst. Rup Kuar, 81 Pun Re 1890, it was held that the word 'lawful' in Section 375 of the Code of Civil Procedure (Act 14 of 1887 of which for all practical purposes Order 23, Rule 3 of the present Code is the counter-part) referred to the legality of the terms or conditions of the compromise and if the same was sought to be set aside on the ground of fraud or a like ground, the proper course for the party concerned was to bring a suit for that purpose.
In the next case Ala Bakhsh Khan v. Kasim Ali Khan, 48 Pun Re 1895, it was again held that the word 'lawful' has reference to the subject-matter of the terms of the compromise and not to its binding character on the parties to it. On this view it was further held that a deed of agreement or compromise being lawful between those who actually executed it would not cease to be so because they or some of them had not authority to bind such of their co-suitors as were not present in court though the said suitors might not be bound by their act. It seems that these earlier cases were not brought to the notice of the learned Judges who decided the Nandlal's case, AIR 1927 Lah 546 (2) (Supra).
16. The next case relied on by learned counsel, that is, AIR 1946 Sind 81 (a case from Sind Chief Court, Supra) undoubtedly supports him.
17. The same view appears to have been taken in the Bombay High Court by Shah J. In AIR 1956 Bom 569 (Supra) wherein it was held that
'when the Court is required to satisfy itself as to the existence of an agreement and is further required to satisfy itself that there is a lawful agreement adjusting the suit the court must on an application to record compromise consider, especially where a plea of undue influence is raised, whether the agreement is not vitiated on any ground such as illegality, fraud, misrepresentation etc.'
Here again, it may be pointed out that an earlier decision of the Bombay High Court by Kania J-as he then was, in AIR 1940 Bom 60 (Supra) does not appear to have been brought to the notice of the learned Judge who decided Misrilal's case, AIR 1956 Bom 569 (Supra), In the Western Electric Company's case, AIR 1940 Bom 60 (supra) Kania J. held that the term 'lawful agreement' as used in Order 23 Rule 3 excludes unlawful agreements, that is, agreements the object or consideration for which is unlawful as defined in the Contract Act and all agreements which on the face of them are void, and that the term should not be interpreted as wide enough to include an inquiry whether the agreement is voidable at the instance of one party, the reason being that an application under Order 23, Rule 3 is in the nature of an interlocutory proceeding and normally it would be rather inconvenient to treat it as a suit where all evidence which will make the agreement voidable by reason of the provisions of the Contract Act may have to be led.
18. The last case, AIR 1961 Madh Pra 245 (Supra) relied on by learned counsel so far as we have been able to understand it deals with an entirely different point and has no real bearing on the point we are called upon to decide.
19. We shall now briefly refer to the otherline of cases which have taken a view contrary tothe submission made to us by learned counsel forthe plaintiff.
20. The Allahabad High Court has consistently taken the view that the word 'lawful' in Order 23, Rule 3 does not mean binding or enforceable and refer to agreements which on their very terms or by their nature are not unlawful and that that word includes agreements which are merely voidable at the option of one of the parties thereto be cause they have been brought about by undue influence, coercion or fraud, and, therefore, the party alleging fraud or undue influence or coercion cannot be allowed to avoid the compromise admitted or proved to have been executed by it in proceedings started by an application under Order 23, Rule 3. See Qadri Jahan Begam v. Fazal Ahmed, AIR 1928 All 494, AIR 1935 All 137 (Supra) and Laraiti Devi v. Sita Ram, AIR 1957 All 820.
21. A discordant note appears to have been struck by two learned Judges of that Court in Union of India v. Raghubir Saran, AIR 1957 All 120 and perhaps the view pressed by learned counsel for the plaintiff cannot be summed up better than in the words of the learned Judges who dealt with this case, and we feel tempted to quote them here :
'When one party to a case alleges that an adjustment has taken place and the other denies the allegation, the court has to go into the question whether the alleged adjustment has taken place. There is no sufficient reason why the court should be debarred from going into the question whether the agreement is vitiated by fraud etc.
It was said that the word 'lawful' could have referred merely to the nature of the agreement and not to facts which rendered it invalid. Even if this is accepted, the question remains whether it can be said an adjustment by an agreement which had been obtained by fraud or undue influence etc. is an adjustment at all which can be enforced against the party defrauded when it has been repudiated by that party, because after all the Court is enforcing the compromise by recording and passing a decree in terms of it. It is conceded that a compromise and the decree based upon it can be set aside in a separate suit if fraud or any other vitiating factor is proved. The tendency of the law is against multiplicity of proceedings. Why should the law allow the enquiry regarding fraud to be held in a separate suit arid not in the very proceedings in which the question is raised? Why should the law permit a decree to be passed at all when the agreement is ultimately bound to fail if the allegations are true?
It is said that such questions are not fit for being enquired into in summary proceedings under Order 23, Rule 3. It does not appear to us that the proceedings under Order 23 Rule 3 are so summary that an allegation of fraud cannot be investigated. It can be investigated in the same manner as the denial of an adjustment can be investigated.'
In spite of all what the learned Judges said they concluded that as there was such a striking consensus of opinion the other way round they were not prepared to depart from the established practice.
22. Turning next to the Madras cases, it was held in Suraparaju v. Venkatarathnam, AIR 1936 Mad 347, that the court is bound to record a compromise provided it is lawful, that is to say, not contrary to law, and the mere fact that it may be voidable is no reason for a court refusing to record it. The same view was adopted in a bench decision of that Court in AIR 1950 Mad 728 (Supra).
23. The Calcutta High Court in Harbans Singh v. Bawa Singh, AIR 1952 Cal 73 has followed the statement of law as laid down by Kama J. in AIR 1940 Bom 60 (Supra).
24. The Kerala High Court in Krishnan v. Rayarappan, AIR 1959 Kerala 130 has also followed the same view.
25. From the foregoing discussion of the case law, the principle which emerges may be summed up somewhat as follows :
26. The meaning of the word 'lawful' in the phrase 'any lawful agreement or compromise' occurring in Order 23, Rule 3 is that the agreement of compromise must not be unlawful by the nature of its terms or on the face of it. In other words, it would be unlawful if the consideration or the object of the agreement is forbidden by law, or is of such a nature that if permitted it would defeat the provision of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral on opposed to public policy as provided by Section 23 of the Contract Act. Again, the agreement would be unlawful, if it is void on the very face of it at law such as where it may be by way of wager or in restraint of the marriage of any person or foi any other similar reason. Thus it would certainly be the duty of the Court where it is asked to record a compromise under this provision to see that the compromise is or is not lawful in this sense; and if it is not so lawful it must refuse to record it. But where the contention is not that the object or the consideration of the agreement was unlawful in the sense indicated above, or that it was void on the face of it, but that it was brought about by undue influence or fraud of coercion, then such an agreement, provided of course it is proved to have been made, should not be condemned as unlawful within the meaning of this provision' for it is only voidable and not void. And being voidable it could be avoided and displaced only after proper investigation and adjudication in a proceeding appropriate for the purpose, that is a suit; and until that is done, such agreements should be accepted to be lawful for the limited purposes of Order 23, Rule 3. The reason is that any full-fledged investigation in this regard tn what after all is said and done is an interlocutory proceeding would be highly inconvenient and the result thereof could by no means be properly accepted as conclusive for all purposes. Therefore, the courts have heavily leaned towards the view that a party disputing the compromise on any such ground should be left free to seek its remedy in this behalf by means of a separate suit with the result that the compromise should not be refused to be recorded on any such grounds as last-mentioned; and the court should nevertheless record the compromise and pass a decree in accordance with it provided of course the other requirements of the rule are satisfied.
27. Having given our thoughtful consideration to the pros and cons of this view, we have, on the whole, felt persuaded to accept it as the view that we should follow. We hold accordingly.
28. On the view which has commended itself to us, we would, therefore, hold that the court below was right in refusing to go into the question of fraud, coercion or misrepresentation in the proceeding before it and that in doing so, it did not fall into any error of law. We would, however, make it clear that it would be perfectly open to the plaintiff to seek his remedy for having the compromise set aside on the grounds alleged by him by a separate suit if he so chooses and that in the event of his succeeding in that suit the decree which has been passed against him on the basis of the compromise will stand vacated.
29. No other point has been pressed before us.
30. For the reasons mentioned above, this appeal fails and is hereby dismissed; but having regard to all the circumstances of the case, we would leave the parties to bear their costs of this Court as of the court below.