N. G. SHELAT, J. ( 1 ) THIS appeal arises out of an order passed on 8th August 1960 by Mr. M. D. Manek District Judge at Amreli in Civil Appeal No. 70 of 1959 whereby the order passed by the Civil Judge (J. D.) Kodinar in Darkhast No. 40 of 1957 came to be set aside and the case sent back to the trial Court for disposal according to law with a direction that the trial Court should proceed to decide the question as directed in the decision of the District Court in the prior Civil Appeal No. 28 of 1957 of which a certified copy is at Ex. 91 in the proceeding and directing the parties to bear their own costs in the appeal. ( 2 ) A preliminary point came to be raised by Mr. I. R. Patel the learned advocate for the respondent saying that the appeal is not competent inasmuch as the decree passed by the first appellate Court is based on the consent of parties in view of sec. 96 (3) read with sec. 108 of the Civil Procedure Code. It is unnecessary to set out the facts leading to this appeal for the reason that in my view this appeal is not competent. Part VII of the Civil Procedure Code relates to appeals. Sec. 96 of that Part relates to appeals from original decrees. Clause (3) thereof then says that no appeal shall lie from a decree passed by the Court with the consent of parties. In the same Part VII of the Civil Procedure Code we find sec. 108 and as provided therein the provisions of this Part relating to appeals from original decrees shall so far as may be apply to appeals- (A) from appellate decrees and (b) from orders made under this Code or under any special or local law in which a different procedure is not providedit would follow therefrom that the provisions contained in sec. 96 would govern the appeals from appellate decrees and also from orders made under this Code. That being so no second appeal would lie from a decree passed by the appellate Court if that has been passed with the consent of parties. In the case of Baoridan and others v. Bashir Ahmad Khan and others A. I. R. 1956 Allahabad 94 it has been held that sec. That being so no second appeal would lie from a decree passed by the appellate Court if that has been passed with the consent of parties. In the case of Baoridan and others v. Bashir Ahmad Khan and others A. I. R. 1956 Allahabad 94 it has been held that sec. 96 (3) would apply to appeals from consent decrees passed in appeal by virtue of sec. 108 and furthermore the principle of estopped upon which sec. 96 (3) is based applies equally to appellate decrees which have been passed on consent of the parties. It is therefore clear that if the decree passed by the first appellate Court was in pursuance of the consent of parties this appeal would not lie against any such decree. ( 3 ) IT is no doubt true as pointed out by Mr. Patel the learned advocate for the appellant that there was no compromise purshis put in by the parties on which any order was based by the Court and that therefore anything stated in the judgment about the learned advocates of the parties having agreed to certain order being passed cannot be said to be a decree passed in pursuance of consent of parties in that appeal. Besides it was at the most a concession on the part of the advocate and cannot therefore be the basis of a decree so as to bar any appeal from such a decision. Now sec. 96 (3) of the Code does not say that the consent of parties shall be in writing. It merely requires that it should be a decree passed by Court with the consent of parties. In that event no appeal can lie. It is therefore clear that the consent of parties may be expressed in writing put in by them or their advocates or orally made by them or their advocates before the Court. What is necessary is that the decree must appear to have been passed on such basis viz. on consent terms stated before the Court. If that is clear either from the last order or from the judgment passed by the Court it can be easily said that the order or a decree came to be passed in pursuance of the consent of parties as contemplated under sec. 96 (3) of the Code. on consent terms stated before the Court. If that is clear either from the last order or from the judgment passed by the Court it can be easily said that the order or a decree came to be passed in pursuance of the consent of parties as contemplated under sec. 96 (3) of the Code. ( 4 ) IN this connection I was referred to a decision in the case of Zabirul Said Alvi v. Lachhmi Narayan A. I. R. 1932 Privy Council 251. That case came up for hearing first before the Privy Council on 5th February 1931 and the decision arrived at at that time is reported in A. I. R. 1931 Privy Council 107. At the time of hearing of that appeal it was found that the final judgment delivered by the Judicial Commissioner of Nagpur before whom the case came in appeal was a judgment by the consent of the parties and Their Lordships enquired of counsel appearing for the appellants how in face of that fact he could ask the Board to interfere. The counsel did not then contest the consent but later on when the case was set down for hearing an application was made to Their Lordships in connection with this point supported by an affidavit of the appellant which had been sent from India. In that application it was alleged that there had in fact been no consent to the judgment above referred to and the statement to that effect by the Judicial Commissioner was a mistake. Then after reciting the judgment and having regard to the contention raised Their Lordships thought that it was impossible for them to accept without further question the affirmation by the judgment of the Judicial Commissioner that the decree they were about to pass was 8 decree by consent of parties. If it was so in fact it clearly could not be challenged by way of appeal and the certificate should have been refused. If however the recital of consent was in some way erroneous as the appellant alleged it was equally clear that no judgment upon the merits has been pronounced by the Court of the Judicial Commissioner and the appeal must be reconsidered by them and dealt with in the ordinary way. If however the recital of consent was in some way erroneous as the appellant alleged it was equally clear that no judgment upon the merits has been pronounced by the Court of the Judicial Commissioner and the appeal must be reconsidered by them and dealt with in the ordinary way. Under those circumstances lest some injustice may unwittingly be done by them Their Lordships felt constrained to remit the appeal to the Court of the Judicial Commissioner with a copy of the affidavit of the appellant for consideration of the matter then raised and a report thereon. A report was obtained and the matter again came up before Their Lordships on 15th July 1932. That report showed that the judgment and the decree appealed from following thereon were professedly made with the consent of the parties that is to say the decree was consensual and did not except so far as authorised by consent embody any judicial finding by the Court itself. The Privy Council therefore held that the decree was one from which no appeal can be entertained as it proceeded entirely upon the consent of parties in making the decree appealed from. On that consideration alone they held that the appeal was entirely incompetent and it came to be dismissed with costs. It would thus follow that there need not be any written terms of agreement between the parties placed before the Court and it is enough if the judgment discloses that the decree or order that came to be passed in that appeal was on the basis of the consent of parties. Now if we turn to the latter part of the judgment of the learned District Judge in appeal it appears abundantly clear that the final order that he happened to pass vas on the basis of the learned advocates appearing for the parties before him having agreed to the same. Now if we turn to the latter part of the judgment of the learned District Judge in appeal it appears abundantly clear that the final order that he happened to pass vas on the basis of the learned advocates appearing for the parties before him having agreed to the same. After stating that what the learned trial Judge has tried to do is to arrogate upon himself the function of an appellate authority over the superior Court and has acted in disregard of the recognised principle that a subordinate Court is bound by decision given by the appellate Court in the same proceeding he has observed as under:-THE learned advocates of the parties agree that the order under appeal must be reversed and the case should be sent back to the trial court for proceeding afresh in view of the specific directions given by my learned predecessor in his appellate judgment dated 9th January 1959 in the prior appeal Civil Appeal No. 28 of 1957 of which a copy is on the record in the trial court at exhibit 91. The learned advocates of the parties agree that no order should be made as regards costs in the present appeal and the case should be thus remanded to the trial court. On that basis the final order came to be passed and the relevant order runs thus :-THE appeal is allowed. The order appealed from is reversed and the case is sent back to the trial court for fresh disposal according to law with a specific direction. . . . . . . . . The parties are directed to bear their own costs in the present appeal. 99from the observations set out hereabove it is clear that the decree was passed on the consent of the learned advocates for the parties appearing before him and it was thus consensual and did not except so far as authorised by consent embody any judicial finding by the Court itself. It is nowhere suggested much less said that the learned advocates appearing for the appellants had no authority to agree to any such terms in pursuance of which the decree came to be passed by the Court. It is nowhere suggested much less said that the learned advocates appearing for the appellants had no authority to agree to any such terms in pursuance of which the decree came to be passed by the Court. It is not in the nature of concession on any point raised in appeal and in my opinion it was a statement made at the bar by the learned advocates of both the parties who were obviously authorised agents for the parties in appeal and when they invite the Court to act upon it and when it does act and pass an order or decree accordingly it amounts to a decree or order passed by the Court on consent of parties. That would certainly bind the parties. That party is estopped from resiling therefrom in appeal by saying that it is not a decree passed under sec. 96 (3) of the Code. ( 5 ) IN this connection Mr. M. M. Patel the learned advocate for the appellants invited a reference to some observations made in the case of Nedunuri Kameswarappa v. Sagpati Subba Rao A. I. R. 1963 Supreme Court 884 at page 890 to say that a concession made by an advocate cannot be the basis of a decree. Those observations are as under:-MUCH cannot be made of a concession by counsel that this was a Sharmila inam in the trial Court because it was a concession on a point of law and it was withdrawn Indeed the central point in the dispute was thus and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. These observations are hardly of any help to him for the simple reason that it was not a matter of concession much less on a point of law and at no stage it is sought to be even withdrawn. No point is made out even in the memo of appeal in that direction. Nor do we and that the concession in the present case was due to some mistake or possibly ignorance so as to say that it cannot bind the appellants as it was in the case referred to above. No point is made out even in the memo of appeal in that direction. Nor do we and that the concession in the present case was due to some mistake or possibly ignorance so as to say that it cannot bind the appellants as it was in the case referred to above. As I said above it was not a concession but in tact an agreement between the parties advocates on which decree was sought for by the learned advocate for the appellants as also the respondents from the Court and it accepted the same and passed decree accordingly. ( 6 ) IT was next urged by Mr. Patel that this cannot be called a decree as defined in sec. 2 (2) of the Civil Procedure Code and that the order is for remanding the case to the trial Court for fresh disposal according to law. Such an order of remand according to him is not a decree as held in M/s. Jethanand and Sons v. The Stare of Uttar Pradesh (1961) 3 Supreme Court Reports 754. It was held in that case that an order remanding a case without deciding any question relating to the rights of the parties is not a judgment decree or final order within the meaning of Art 133 of the Constitution. An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. Now if we turn to the order it is based on the consent given by the learned advocates appearing for the parties in the Court below. It was for setting aside the order passed by the trial Court The first part of the order is therefore to set aside the order passed by the trial Court by allowing the appeal. Sending back the case to the trial Court is ancillary when the decision of the trial Court is reversed and the appeal is allowed. A decree drawn up on that basis would fall with the definition of the term decree as contemplated under sec. 2 (2) of the Civil Procedure Code inasmuch as it is the formal expression of an adjudication which conclusively determines the rights of the parties arising in that appeal. A decree drawn up on that basis would fall with the definition of the term decree as contemplated under sec. 2 (2) of the Civil Procedure Code inasmuch as it is the formal expression of an adjudication which conclusively determines the rights of the parties arising in that appeal. Any decision whereby the decree of the trial Court is set aside would thus amount to a decree end is not merely an order of re and so as to call for some finding or the like from the trial Court regarding some point etc. so as to say that the matter hap not been finally decided by the Court. The Supreme Court decision relied upon by the learned advocate for the appellants would have no application whatever. It is thus clear that the decree in appeal was passed by the learned District Judge on the basis of the learned advocates of the parties in appeal appearing before him having agreed to do so viz. to reverse the order of the trial Court as also to direct the parties to bear their own costs and to send back the proceedings for disposal in accordance with law keeping in mind the specific directions given in the judgment Ex. 91 in Civil Appeal No. 28 of 1957. It is thus clear no appeal against any such decree passed on the basis of the consent of the parties is competent under sec. 108 read with sec. 96 (3) of the Civil Procedure Code. That being so it is unnecessary to go into the merits of the case. ( 7 ) THE appeal is dismissed. The appellants shall pay the costs of the respondent and bear their own. Appeal dismissed. .