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2001 DIGILAW 490 (PNJ)

Santosh Kumar v. Karam Devi

2001-05-03

SWATANTER KUMAR

body2001
JudgmentJudgment 1. This Regular Second Appeal is directed against the judgment and decree passed by the learned first appellate Court dated 4-6-1999. 2. Reference to basic facts would be necessary. A suit for declaration was filed by the plaintiff claiming that he was owner of the house in dispute and further prayed for the relief of injunction restraining the defendant from alienating the said house. This suit was contested by the defendant. The learned trial Court vide its order dated 2-6-1998 dismissed the suit as withdrawn in view of the compromise between the parties, which reads as follows : "2-6-98 : Counsel for the parties. Parties have effected the compromise. Defendant has made statement that she will not dispose of the suit property during her life time. In view of the statement of the defendant the plaintiff has made statement that he shall pay Rs. 200.00 p.m. as maintenance to the defendant and he withdraw the present suit. In view of the statements of the parties, the suit of the plaintiff is dismissed as withdrawn. File be consigned to record room. Sd/- Civil Judge (Jr. Divn.) Rupnagar." 3. This order was passed after recording the statements of the parties in the presence of their counsel. Certain correction was made in this order by the Court on 17-8-1998. Karam Devi respondent filed an appeal against this order, which was accepted by the learned first appellate Court and the decree dated 2-6-1998 was set aside giving rise to this Regular Second Appeal. Notice of motion was issued vide order dated 23-2-2000. Learned counsel for the respondent appeared and the matter was adjourned on 11-9-2000. On that date nobody appeared for the respondent and the case was adjourned for hearing for 11-1-2001. At the request of the learned counsel for the respondent it was adjourned to 18-1-2001. Thereafter on 14-2-2001 and finally on 25-4-2001 the matter was listed for hearing and the Court passed the following order : "Nobody appears on behalf of the respondent despite the fact that the case has been called for three times. Learned counsel for the appellant has concluded his arguments. Reserved for judgment." 4. Thereafter on 14-2-2001 and finally on 25-4-2001 the matter was listed for hearing and the Court passed the following order : "Nobody appears on behalf of the respondent despite the fact that the case has been called for three times. Learned counsel for the appellant has concluded his arguments. Reserved for judgment." 4. The short submission made on behalf of the learned counsel for the appellant is that against a compromise decree no appeal could be preferred by any party within the purview of scope of Section 96 of the Civil Procedure Code read with Order 23, Rule 3 of the Civil Procedure Code. The aggrieved party should only approach the Court by means of filing a proper application. In this regard, learned counsel for the appellant relied upon the judgment of the Hon ble Apex Court in the case of Banwari Lal V/s. Smt. Chando Devi, 1993 (suppl) Civil CC 214 and judgment of this Court in the case of Hari Ram V/s. Nafe Singh and Kishan Chand V/s. Rajinder Kaur, 1993 (Suppl) Civil CC 308 (P and H). 5. The bare reading of the above order shows that the order and decree of the trial Court dated 2-6-1998 was a compromise decree and no appeal could be preferred against a compromise decree. Section 93(3) of the Civil Procedure Code, in fact, bars filing of appeal against the decree of compromise. 6. This Court after discussing the law in great detail in the case of Hari Ram (supra) and following the judgment of the Hon ble Apex Court held as under : "When S. 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. Applying the aforesaid principles to the present case, it cannot be said that either the compromise was unlawful or was the result of any fraud or mis-representation. The compromise was lawful which has been concurrently found by the learned Courts below and there could be no doubt that the provisions of Order 23, Rule 3, CPC have been complied with in their spirit and substance. In the face of these facts, even the present appeal would not be maintainable because the agreement was entered into between the parties by their free consent." 7. In the face of these facts, even the present appeal would not be maintainable because the agreement was entered into between the parties by their free consent." 7. In view of the law settled by the Hon ble Supreme Court, I am of the considered view that appeal before the learned first appellate Court was not maintainable. Resultantly, the judgment and decree of the first appellate Court is set aside for the reasons that no appeal was maintainable against the order dated 2-6-1998. However, dismissal of this appeal would not operate as a bar for the parties to file an appropriate application before the Court of competent jurisdiction in accordance with law. The appeal is, thus, allowed without any order as to costs. The finding recorded on merits by the first appellate Court would be of no consequences for the consideration of the application, if filed by the parties before the Court of competent jurisdiction. Appeal allowed.