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Paban Sardar Vs. Bhupendra Nath Nag - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.769
AppellantPaban Sardar
RespondentBhupendra Nath Nag
Excerpt:
civil procedure code (act v of 1908), section 96(3), order xxiii, rule 3, order xliii, r. i, clause (m) - compromise, not recorded, consent decree under--appeal. - .....but on the basis of a compromise, that is to say, it was a decree justified, if at all, by order xxiii, rule 3. but when the terms of that rule come to be examined, it is apparent that a decree can be passed only after there has been an order that the compromise be recorded. this is not a mere matter of form. it has an important result. if the decree is in accordance with a recorded compromise, then it may well be contended that the provisions of section 96, clause (3), of the code apply and the person feeling himself aggrieved by such a decree may be without the remedy of an appeal from that decree. i put it in a tentative form, as whether it is so or not is not a matter which calls for our express decision now. but the remedy of a person who says that in fact there was no compromise.....
Judgment:

1. We must allow this appeal and set aside the decree of the lower Appellate Court. A decree in this case was passed by the Subordinate Judge not after a hearing but on the basis of a compromise, that is to say, it was a decree justified, if at all, by Order XXIII, Rule 3. But when the terms of that rule come to be examined, it is apparent that a decree can be passed only after there has been an order that the compromise be recorded. This is not a mere matter of form. It has an important result. If the decree is in accordance with a recorded compromise, then it may well be contended that the provisions of Section 96, Clause (3), of the Code apply and the person feeling himself aggrieved by such a decree may be without the remedy of an appeal from that decree. I put it in a tentative form, as whether it is so or not is not a matter which calls for our express decision now. But the remedy of a person who says that in fact there was no compromise is that he is able to appeal from the order directing the compromise to be recorded under Order XLIII, Rule 1, Clause (M), which permits an appeal from an order under Rule 3 of Order XXIII, recording or refusing to record a compromise. In this case there was no order that the compromise be recorded; and accordingly there was no order from which an appeal could be preferred. And as there was no order, so there could not be a decree under Order XXIII, Rule 3.. The result has been that though the plaintiff maintains that he did not enter into this compromise, he has not had the opportunity which the law provides of discussing this question not only in the Court of first instance but, if necessary, in the Court of Appeal. The appellant, therefore, appears to me to be a person under a distinct grievance and nonetheless because apparently the learned Subordinate Judge thought badly of him.

2. We can only secure to him the rights to which he is entitled by setting aside the decree that has been passed by the Munsif, on the ground that there was no order that the compromise be recorded. The case must go back to the Court of first instance in order that it may then be determined according to law. What the course there will be we need not now anticipate. It is sufficient for us to say that the appeal must be allowed and the decrees of the Additional District Judge and the Subordinate Judge must be set aside and the case sent back to the Court of the Subordinate Judge of Alipore in order that he may deal with it according to law. Costs hitherto incurred will abide the result.


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