1. This appeal is on behalf of the plaintiffs and arises out of a suit for possession. There are seven plaintiffs. Of them plaintiffs 1 and 2 are adult males, Nos. 3, 4 and 7 are ladies and Nos. 5 and 6 are minors. The minors were represented in the Courts below by plaintiff 1, who also represents them in this appeal. At the instance of plaintiffs there was a local, investigation by a pleader Commissioner who submitted a report in their favour. The defendants filed an objection to the said report. At the date of the hearing of the suit, which was 15th August 1930, defendant 2 filed an application stating that the parties had agreed to the lands being measured by one Shama Charan and that if it was found by him that the lands in suit were in possession of the defendants, the plaintiffs would get a decree, otherwise the suit would stand dismissed, but the plaintiffs would be entitled to get Rs. 50 from the defendants. The said defendant further alleged that Shama Charan had measured the lands and had found that no part of the lands in suit was in the possession of the defendants. He accordingly prayed for the said adjustment to be recorded under the provisions of Order 23, Rule 3, Civil P.C. The plaintiffs denied the said agreement, but the learned Munsif after taking evidence found that the agreement was alleged by defendant 2 and dismissed the suit on the findings of Shama Charan. The attention of the Court does not seem to have been drawn to the fact that some of the plaintiffs were minors. Admittedly no leave of the Court was taken under Rule 7, Order 32 of the Code. On appeal from the decree made by the trial Court, the point urged by the plaintiffs, as the appellate Court puts it, was whether the suit was adjusted between the parties out of Court and whether the compromise should be recorded.
2. The Court of appeal below however only applied its mind to the question of the factum of the agreement but did not consider whether the alleged compromise was lawful or could be recorded under the provisions of Order 23, Rule 3 of the Code. It did not even advert to the fact that there were minors whose interest it was the duty of the Court to safeguard and protect. The appellate Court agreed with the first Court and remarked that the Munsif was justified in recording the compromise under Order 23, Rule 3, Civil P.C.
3. The appeal was accordingly dismissed; hence the second appeal by the plaintiff's. A preliminary objection has been taken to the competency of the appeal. Mr. Dass who appears on behalf of the respondents urges firstly that the appeal being really against the order recording the compromise under Order 23, Rule 3, a second appeal is barred under the provisions of Section 104(2) of the Code. Secondly he urges that even if the appeal be regarded as an appeal from the decree, after the findings of the Court of appeal below, the decree must be taken to be a decree passed with consent of parties and Section 96(3) of the Code, bars the appeal. In the course of the argument I indicated that possibly the preliminary objection was a sound one. On that the advocate for the appellant asked me to interfere in revision in case I held that no appeal lay. As I considered that the case was a fit one for interference under the revisional jurisdiction I heard the learned advocates at length who presented their cases from all aspects and I must acknowledge the great assistance I have derived from them in the case which has engaged my anxious consideration. After having heard the learned advocates I have come to the conclusion, though not without hesitation, that no appeal lies. But I am at the same time quite convinced that I have power to interfere in revision and should so interfere in this case.
4. My reasons for giving effect to the preliminary objection are as follows: (1) The Code provides for one appeal when the factum of legality of a compromise of adjustment of a suit is questioned. The Court o appeal below has arrived at a finding that there was a compromise as pleaded by defendant 2. To allow the same matter to be reagitated in an appeal from the appellate decree would be to allow two appeals when the Code gives one. (2) A decree passed is still a decree passed by consent, whether the compromise is admitted by both the parties or disputed by one of them and the Court finds that there was one. (3) Where the parties say that the determination of their disputes by a person is to be final as between them, that is to be regarded as an undertaking not to appeal, and an appeal preferred would, as James, L.J., observed in Moonshee Amir Ali v. Mahoranee Inderjit Singh (1870-72) 14 MIA 203, be in violation of good faith and ought not to be entertained where the real merits of the case have been withdrawn from the Court. The same principle has been formulated though in different language by Rampini and Pratt, JJ., in Bahir Das v. Nobin Chandra (1902) 29 Cal 306 where they observe that parties 'are equitably estopped' from resiling from and impugning the decree which was given by the Court in accordance with the finding on the issue which they agreed to refer to the decision of a third person. In Dwarka Nath v. Atul Chandra 1928 Cal 108 there is an observation which apparently seems to militate against the view I am taking but an examination of the case leads me to think that the point which I have been called upon to decide did not really arise in that case. The observation is of Roy, J. and occurs at p. 356. It is as follows:
Certain preliminary objections were taken by the learned vakil for the respondents. They are not serious: one was that no appeal lay from a decree which is based on a compromise. The contention of the plaintiff is that the whole compromise has been strurk out. The dispute is over the nature of the compromise and the plaintiff has the right to show what the compromise was.
5. I must first of all remark that the said case came up on first appeal to this Court, but I am not placing much importance on the said fact for distinguishing the said case. From the report it appears that the plaintiff claimed a share in two villages appertaining to Touzi No. 1760/28. The contesting defendants denied the title of the vendor of the plaintiff and the vendor challenged his conveyance to the plaintiff. Issues were framed and the plaintiff was being examined on commission. At that stage a petition of compromise was presented to the Commissioner. By the compromise the plaintiff gave up his claim on the basis of his purchase; the said two villages were to be partitioned between the plaintiff and his cosharers (not parties to the suit) on the one hand and the defendants on the other according to the shares recorded in the Record of Rights by an arbitrator Sarat Chandra Bhattacharjee and that after the division by him the plaintiff was to withdraw the suit.
6. No order was obtained from the Court for appointing Sarat Chandra as arbitrator. Sarat Chandra later on refused to act and on the application of the plaintiff the Subordinate Judge appointed another person as arbitrator under the provisions of para. 5, Schedule 2, Civil P.C. This person made the division and submitted an award and inspite of the objection of the defendants that there was no reference to arbitration under para. 2 of the said schedule the Subordinate Judge made a decree in conformity with the award. His successor however deleted the so-called award from the decree and the final decree that was made was one simply allowing the suit to be withdrawn without liberty to the plaintiff to bring a fresh suit. It was pointed out by this Court that the compromise between the parties was not simply that the suit was to be withdrawn but was to be withdrawn on the happening of certain contingencies, i.e., the division of the lands by Sarat Chandra. The final decree therefore was one that was not passed in accordance with the consent of the parties and hence Section 96(3) was out of the way. The question raised before me has however been considered by the Lahore High Court in Guru Charan Singh v. Shibdev Singh 1922 Lah 309. The said Court held in circumstances somewhat similar to the present case that the appeal was incompetent and I agree with the said judgment. But as I have said before my decision on the preliminary point does not dispose of the case. I am still to see if the Courts below had jurisdiction to pass an order under Order 23, Rule 3 of the Code.
7. My view is that the agreement which both the Courts below have found to be established amounts to a reference to arbitration without the intervention of the Court of the subject matter of a pending suit and the decision of Shama Charan really amounts to an award on such a reference. Mr. Dass who appears for the respondent has contended before me that the decision of Shama Charan does not amount to an award, but is to be considered as an adjustment of the suit which the Courts below have rightly recorded under Order 23, Rule 3 and in support of his contention he has referred me to the cases of Himanchal Singh v. Jatwar Singh 1924 All 570 and Basdoo Singh v. Ram Raj Singh 1932 All 166. Before I examine these cases I may observe that so far as our Court is concerned it is now settled law that an award made on a reference without the intervention of the Court during the pendency of a suit cannot be recorded as a compromise or adjustment of the suit under Order 23, Rule 3. The Bombay, Madras, Patna and Rangoon High Courts have however, taken a different view. The divergence of opinion is due to the different interpretations put upon the words 'any other law for the time being in force' occurring in Section 89 of the Code, (See the cases collected in Rohini Kanta v. Rajani Kanta 1934 Cal 643 as also Ramadhar Rai v. Subedar 1932 Pat 205 and Laljee Jesang v. Chandar Bhan 1931 Rang 58. I am bound to follow the course of decisions of our Court and if the decision of Shama Charan is an award the Courts below had no jurisdiction to record the decision of Shama Charan as an adjustment of the suit under Order 23, Rule 3.
8. This leads to the question whether the said decision is an award. The cases of the Allahabad High Court cited by Mr. Dass are distinguishable. In those cases the parties to the suit agreed to be bound by the statement of a person named by them. The nominee made a certain statement and the question raised was whether the suit could be disposed of in accordance with the statement so made. Sulemain and Kanhaiyalal, JJ., base their decision firstly on Section 20, Evidence Act, and secondly on the judgment of the Madras High Court in Chinna v. Venkataswami 1920 Mad 800. The Madras case proceeds on the view that an award in a pending case made by an arbitrator appointed without the intervention of the Court can be recorded under Order 23, Rule 3, a view which as I have said is against the decisions of our Court, and Section 20, Evidence Act, cannot have any possible application to the case before me. Nor does the case of Khobhari Sah v. Jhaman 1917 Cal 327 support the contention of the respondent. There no judicial or quasi judicial work had to be done by the person nominated who was only to see with his own eyes a certain state of things, e.g. existence of furnace, bellows, etc., in the defendant's house and make a statement in Court. I hold that Shama Charan had to do some work which was in the nature of judicial work and that his determination is an award and that the Courts below had no jurisdiction to pass a decree which is in accordance with the decision of Shama Charan under the colour of exercising the powers under Order 23, Rule 3. In the view I have taken it is not necessary to consider the other contentions raised by the appellants. If I had held that the case came under Order 23, Rule 3, I would not have set aside the decree of the Courts below so far as the minors are concerned seeing that they are appearing even in this Court by plaintiff 1 as their next friend but would have made the same reservations in their favour as were made by the Acting Chief Justice in Golnur Bibi v. Abdus Samad 1931 Cal 211. The result is that the appeal is dismissed, but the decrees of the Courts below are set aside and the learned Munsiff is directed to proceed with the suit. I make no order as to costs.