1. The appellant in this civil miscellaneous appeal, who also files a civil revision petition on the same grounds, brought a suit for money against the respondent. The suit underwent many adjournments, several of them being with a view to settlement and the others being at the request of the defendant through his pleader. On 18th January 1933 the plaintiff filed a petition praying that the suit be advanced and a decree recorded in terms of the compromise which was put before the Court supported by an affidavit from the plaintiff, which recites that the compromise was signed by himself and the defendant and embodied the terms of an agreement for settlement of the litigation. The pleader appearing for the defendant represented that he had no instructions regarding this compromise, and at his request the matter was adjourned to 2nd February to which date the suit also was posted. It is seen from the Subordinate Judge's judgment that the defendant is a resident of Amalapur where the suit was being tried and where the vakil himself resides. The pleader should not therefore have had any particular difficulty in getting instructions from his client during the fortnight which intervened between the filing of the compromise petition and the date to which the suit was posted. Moreover, the defendant was under notice that his presence would be required in connexion with the suit on 2nd February. On that date, however, the defendant did not appear and his pleader stated that he did not know why the defendant did not appear. There was nothing to indicate that the compromise petition was denied by or on behalf of the defendant, and there is nothing in the judgment of the learned District Munsif to indicate that the pleader applied for any further adjournment. The District Munsif after reciting the facts regarding the previous adjournments observes:
In this state of things the suit should be decreed as prayed for, but I decree the suit in terms of the compromise petition which provides for some concession to the defendant in the matter of costs.
2. Against this order the defendant filed an appeal which was drafted as a Civil miscellaneous appeal against an order recording a compromise. The learned Subordinate Judge allowed the appeal and remanded the petition to the lower Court in order, 'to give the defendant an opportunity', not stating for what purpose the opportunity was given. Against this order the civil miscellaneous appeal and the civil revision petition have been filed. A preliminary contention has been raised that no civil miscellaneous appeal lies with reference to the terms of Section 104(1), Clause (i) and Section 104(2), Civil P.C. the appeal being against an appellate order passed under Order 43, Rule 1(m). It is contended for the appellant that the decree of the trial Court is not really a decree in terms of the compromise but an ex parte decree, and that the appeal before the lower appellate Court was not really an appeal against an order recording a compromise but an appeal against an ex parte decree. In support of this contention the appellant relies upon an order in execution passed by the learned District Munsif himself, in which he interprets his own judgment as nothing more than an order for an ex parte decree even though it was expressly passed in terms of the compromise. I find myself unable to follow the subtleties of the learned District Munsif's reasoning. It seems to me quite clear that the learned District Munsif did in fact order a decree in terms of the compromise disallowing a portion of the costs when he might have ordered an ex parte decree for the amount claimed in the plaint with full costs. It follows therefore that no civil miscellaneous appeal to this Court would lie and that we must confine our attention to the civil revision petition. For the sake of convenience, however, I will continue to refer to the plaintiff as the appellant.
3. It has been argued for the appellant that no appeal lies against an order recording a compromise when there has been no dispute or contention before the trial Court as to the factum of the compromise and the compromise has resulted in what is really a consent decree, against which, with reference to the terms of Section 96(3), Civil P.C., there can be ordinarily no appeal. This argument is based on two Bombay decisions reported in Gulabchand Ramsukh v. Ramsukh Ram pratap 1926 Bom 39 and Onkar Bhagwan v. Ganna Lakhaji 1933 Bom 205. There is of course much to be said for the view taken by the learned Judges of the Bombay High Court in this matter. The Code provides for an appeal against an order recording a compromise, not for an appeal against a decree following from an order recording a compromise. It is arguable that the Code would not provide for an appeal against an uncontested order when a decree would follow automatically from that order. But the more forcible argument is that the Code cannot be read as giving what is in effect a right of appeal against a consent decree, against which no appeal lies with reference to the provisions of Section 96. I am, however, not aware of any Madras decision which has followed these decisions of the Bombay High Court and in the absence of authority in this High Court, I am inclined to the view that when the Code provides specifically for an appeal against an order recording a compromise without any restriction, such an appeal will lie, even though when there has been no dispute as to the factum of the compromise, the dismissal of the appeal would normally follow as a matter of course, there being no materials upon which the appellate Court can interfere.
4. Now turning to the judgment of the learned Subordinate Judge, it seems to me that the materials upon which the learned Subordinate Judge has set aside the order recording the compromise in this case are mainly materials which are not contained in the evidence before him. The reasons which he gives for thinking that the matter requires to be re-opened are the facts that the compromise was brought into existence by the plaintiff without the knowledge of his pleader, that the decree was passed in the absence of the defendant when the pleader said he knew nothing of the compromise, the fact that the compromise was not proved by oral evidence and the examination of the attestors but only by a formal question to the plaintiff, the theory that the lower Court is not bound to record a compromise which in this case was not bona fide and fair and which might have been brought into existence by undue influence, misrepresentation and fraud and the allegation that the lower Court should have granted an adjournment orally prayed for by the pleader for the defendant. Now, so far as these matters are matters of law, it seems to me that the learned Subordinate Judge's view is entirely erroneous. So far as they are matters of fact, there seems to be little basis for them other than the allegations contained in the memorandum, of appeal. There is nothing in the record, so far as I am aware, to show that the defendant's pleader had not been instructed regarding the terms of the compromise at the time when the suit was actually disposed of. It is true that when the compromise petition was first filed the pleader stated that he knew nothing about it but in the fortnight's interval between the filing of the compromise petition and the disposal of the suit, it is reasonable to assume that he would have taken instructions from his client and there is nothing in the evidence to the contrary. It is noticeable that the vakil who appeared in the lower Court is not the vakil who argued the appeal, so that it can hardly be a case of statements from bar which might have been accepted as proceeding from the gentleman who argued the case down below.
5. There is nothing in the record, so far as I have been able to gather, to support the allegation that there was an oral application for an adjournment on 2nd February or that such application was refused when the learned Subordinate Judge says that the lower Court failed to see that it was not bound to record an unfair compromise or one which might conceivably have been vitiated by fraud, etc., that statement seems to me to embody an entirely incorrect proposition of law. Under Order 23, Rule 3, when it is proved to the satisfaction of the Court that a suit has been adjusted by any lawful agreement, or compromise, the Court is bound to order such agreement, compromise or satisfaction to be recorded and to pass a decree in accordance therewith. The Court has no jurisdiction except in the case of minors etc., to investigate the fairness or unfairness of a compromise which has been accepted by both the parties. And there is good authority for the view that a compromise cannot be attacked in proceedings under Order 23 by allegations that it is a voidable compromise brought about by fraud, undue influence or duress: vide, Qadri Jahan Begam v. Fazal Ahmed 1928 50 All 748 and Husain Yar Beg v. Radha Kishen 1935 All 137. Provided the compromise is lawful, that is to say not contrary to law, the Court is obliged to record it, unless there are special circumstances arising through one of the parties being under a disability.
6. The mere fact that it may be voidable is no reason for a Court refusing to record it and though it is true, as stated by the learned Subordinate Judge, that the Court has a duty to go into any question of fact on which the parties may not be agreed, it has no duty to go behind a compromise upon which the parties have agreed. Again, though the Court may require proof by oral evidence of the factum of a compromise, there is nothing illegal in the acceptance of evidence of affidavits to this effect : vide Ruttonsey Lalji v. Pooribai (1883) 7 Bom 304 and Samibai v. Pamji Pragji (1896) 20 Bom 304. It is noteworthy that in the present case there is even now no allegation that the defendant in fact did not consent to this compromise. In such circumstances, there is no justification for sending the case back for proof of a signature about which all the parties are agreed. Nor can the absence of the defendant be a reason for setting aside the decree. Quite apart from the fact that the defendant's pleader had had a fortnight's notice of the application to record a compromise, the defendant himself was in the ordinary course required to be present on that date for the trial of the suit and his absence, if it proved anything at all, was an indication that owing to the compromise he had lost interest in the suit. The truth seems to be that the learned Subordinate Judge has set aside this compromise decree not on the strength of any materials contained in the evidence, but entirely on the strength of the allegations contained in the memorandum of appeal unsupported by any affidavit from the party. These allegations relate, in so far as they are serious allegations, to questions of fraud, undue influence and duress which the trial Court under Order 23 had, in my opinion, no jurisdiction to go into. Still less had the appellate Court jurisdiction to set aside a valid decree in terms of a compromise on the strength of these vague and unsupported allegations. It seems to me that the order of the learned Subordinate Judge is not only in itself an injudicious order, but that it is one positively made without jurisdiction and liable to be set aside in revision.
7. I therefore dismiss the civil miscellaneous appeal and allow the civil revision petition and restore the decree of the trial Court. The respondent will pay the costs of the petitioner in the civil revision petition. There will be no order as to costs in the civil miscellaneous appeal.