1. This is an appeal against an order recording a compromise.
2. A preliminary objection is taken that no appeal lies. It has been held in the case Onkar Bhagwan v. Gamna Lakhaji and Co. I.L.R.(1932) 57 Bom. 206 that in spite of the terms of Order 43, Rule (1)(m) no appeal lies against an order recording a compromise unless there was a contest before the Court at the time when the compromise was recorded, the reasoning being that if the compromise was recorded by consent, that consent order itself is practically tantamount to a consent decree which is not appealable with reference to Section 96(3) of the Civil Procedure Code. With very great respect I must say that I find some difficulty in accepting the view laid down by the learned Judges who decided that case. Order 43, Rule (1) (m) gives a right of appeal against an order recording a compromise without any restriction as to the nature of that order, whether passed after contest or without contest. To assume that the order is in fact a consent order because there was no contest is to assume that the appeal has no substance; but even if so much is assumed, the decree is something separate from the order and when the Code provides for a right of appeal against the order I do not see how that right of appeal can be taken away merely because the order would in the nature of events be followed by an unappealable decree. Nor am I impressed by the contention that if there is no contest before the lower Courts there are no materials upon which an appeal may be based. It is conceivable that as in the present case an application might be made to admit additional evidence in appeal which, if admitted, would furnish materials which were not available in the lower Court; and if in fact there are no materials, then the process of deciding the appeal is considerably simplified. But I do not see how aright of' appeal conferred by Statute is taken away by the mere absence of materials for argument. So far as I am aware this Bombay decision has not been followed or dissented from by any decision of this Court.
3. There is a further objection that according to the decision in Alamelu Ammal v. Rama Aiyar : (1922)43MLJ290 there is no appeal against an order recording a compromise which has ripened into a decree if no appeal is filed against the decree itself. This decision conflicts with the decision of another Bench in an earlier case reported in Govindasami v. Kaliaperumal (1920) 16 L.W. 155 and there is a subsequent decision of a single Judge. Satyanarayanamoorthi v. Butchayya (1924) 48 M.L.J. 249 which follows Govindasami v. Kaliaperumal (1924) 48 M.L.J. 249 and dissents from that reported in Alamelu Ammal v. Rama Aiyar : (1922)43MLJ290 . It seems to me therefore that the balance of authority in this Court is in favour of the view that an appeal does lie against the order even when a decree has been passed in terms of the compromise.
4. On the merits it is to me quite apparent that there is no ground whatever for interfering with the lower Court's decision unless the appellant can succeed in his petition for the admission of additional evidence. The basis of this petition is an allegation that the appellant when sending a power of attorney to his vakil authorising him to sign on behalf of his client the compromise which had already been drafted, sent along with it another communication in which he instructed the vakil not to sign the compromise unless an additional term was included and he alleges that he also sent a telegram to the vakil telling him not to sign the compromise. These materials were not placed before the lower Court, the appellant himself being absent. It seems to me that what in fact the appellant wishes to do by means of this petition for the admission of additional evidence is to secure through this appeal a decision that the compromise decree was obtained by fraud. That, in my opinion, he is not entitled to do. The grounds upon which additional evidence may be admitted in appeal are confined to those laid down in Order 41, Rule 27. It cannot be contended that the lower Court has refused to admit the evidence which is now tendered. Nor can it be contended that this Court is unable to pronounce judgment in the absence of this additional evidence; and I do not think that there is any other substantial reason which would justify me in admitting this evidence in appeal. If in fact the appellant desired to revoke a power of attorney which he had given to his vakil to sign a particular compromise, he should have taken steps himself to see that this compromise, was not signed on his behalf and placed before the Court. If he was, owing to the fraudulent action of his vakil or others committed to a compromise to which he did not wish to consent, then his remedy is not by adducing evidence of fraud in appeal before this Court but by taking proper action to get the decree set aside as having been obtained by fraud.
5. It is suggested that the lower Court made a mistake in its order wherein it said that the first defendant who signed the compromise had a power of attorney to act on behalf of the second defendant who is the appellant, the truth being that it was the vakil who signed the compromise on behalf of the second defendant, being empowered by a power of attorney in this behalf. The materials in support of this allegation are contained in affidavits in interlocutory proceedings, in this appeal, which are not, strictly speaking, evidence before me. Even assuming that the lower Court made a mistake in saying that the first defendant signed on behalf of the second defendant by virtue of the power of attorney when it was actually the second defendant's vakil who signed, being so empowered, that error is not in my opinion one which would vitiate the conclusion, namely, that there was a compromise accepted by all parties on the face of the record as it appeared before the lower court; and as I see no reason to admit in appeal additional evidence, it follows that the appeal must be dismissed with costs.