This petition under S. 115 of the Civil Procedure Code is for revision of an order dated 30-11-54 passed by Mr. C. N. Bora, Subordinate Judge, Upper Assam Districts, Silchar, in Miscel­laneous Appeal No. 50 of 1954. By the order in question the learned Subordinate Judge set aside • the decision of the Sadar Munsiff dated 29-5-53 passed in Title Suit No. 66 of 1950, recording a compromise under O. 23, R. 3 of the Civil P. C., alleged to have been made between the parties. (2) It is unfortunate that I have to remand the case to the learned Subordinate Judge for a decision on merits because the material facts can­not (be gathered from either of 'the two judgments of the Courts below. The learned Subordinate Judge has set aside the order recording the com­promise mainly on the ground that an ex parte decree had been subsequently passed in the suit and there was no appeal preferred against that decree. The relevant facts bearing on the point are that originally the trial Court refused to re­cord the compromise and then proceeded to hear the suit itself, in which he eventually passed an ex parte decree. The defendant, who was aggrieved by the order refusing to record the compromise, prefer­red an appeal under O. 43, R. 1. Cl. (m) of the Civil P. C. That appeal was allowed and the case was sent back to the learned Munsiff to rehear the matter and then record the compromise if proved to the satisfaction of the Court. It ap­pears that in the first instance the learned Munsiff trying the suit had summarily dismissed the application praying for recording the compromise. When the case went back, the learned Munsiff after taking evidence recorded the compromise. It is against this order that the plaintiffs in the suit appealed; and the learned Subordinate Judge thought that because of there having been no ap­peal against the ex parte decree itself the com­promise could not be recorded. It is only on that basis the learned Subordinate Judge has set aside the order of the learned Munsiff. It is against this order that the plaintiffs in the suit appealed; and the learned Subordinate Judge thought that because of there having been no ap­peal against the ex parte decree itself the com­promise could not be recorded. It is only on that basis the learned Subordinate Judge has set aside the order of the learned Munsiff. (3) The order, in my opinion, is clearly erro­neous and cannot be sustained inasmuch as it amounts to refusal OR the part of the Court below to exercise jurisdiction duly vested in it by law, in assuming that there was no jurisdiction in the learned Munsiff to record the compromise in view of the existence of an ex parte decree. Where a Court has refused to record a compromise, the party aggrieved by the order is entitled to prefer an appeal against it. The mere fact that subsequently an ex parte decree happens to be passed in the suit does not take away his right of appeal against the earlier order in which the Court refused to record the compromise. Where therefore an appeal has been preferred and the order of the Court below is set aside and a direction given to that Court to reconsider the matter and to record the com­promise, if proved to be genuine, within the mean­ing of O. 23, R. 3, it is obvious that the fate of the decree, if any, passed in the suit would have to depend upon the result of the decision in that proceeding for recording the compromise. For obvious reasons the decree cannot have any valid effect until that question has been set at rest. In the present case when the matter went back to the learned Munsiff he was satisfied that there was a lawful agreement or compromise, which in his opinion, had to be recorded. There­fore, the result of the decision was that the ex parte decree passed in the suit was either discharged or became infructuous by virtue of that order. It was. therefore, wrong on the part of the learned Subordinate Judge to assume that there was no suit pending before the learned Munsiff in which the compromise could be recorded. The order is clearly wrong and must be set aside. (4) Mr. It was. therefore, wrong on the part of the learned Subordinate Judge to assume that there was no suit pending before the learned Munsiff in which the compromise could be recorded. The order is clearly wrong and must be set aside. (4) Mr. Ahmed on behalf of the opposite party contends that in any case the learned Sub ordinate Judge should have decided independently of the order of the learned Munsiff as to whether or not there had been any lawful adjustment or compromise between the parties as alleged by the defendant-petitioner, and as there has been no decision given by him on the merits the matter has to go back to the learned Subordinate Judge for that purpose. This contention is obviously correct. As I have already pointed out, the learn­ed Subordinate Judge decreed the appeal and set aside the order of the learned Munsiff only on the preliminary ground discussed above and did not enter into the merits of the case at all. I have, therefore, no alternative but to set aside his order and direct that the appeal should be disposed of by him according to law. In other words, he will now independently determine the question whether the defendant has been able to satisfy the Court that there was a lawful agree­ment or compromise between the parties in the suit as found by the learned Munsiff. The rule is accordingly made alteolute. But the costs of this application will abide the result of the deci­sion of the appeal itself. (5) The records of the case should go down to the Court at once for an early disposal of the appeal. D.S.P. Case remanded.