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2006 DIGILAW 185 (KAR)

PILLAMMA v. C. PUTTANNA

2006-02-21

B.S.PATIL

body2006
B. S. PATIL, J. ( 1 ) THIS Miscellaneous First Appeal is directed against the order dated 21. 02. 2004 passed in o. S. No. 859/2003 on the file of I Additional Civil Judge (Sr. Dn.), Bangalore Rural District recording the compromise entered into between the parties. The appellant has also challenged the decree passed by the Court below on 05. 03. 2004 and has further sought for dismissal of the suit O. S. No. 859/2003 filed by the plaintiff-respondent herein. ( 2 ) AT the time of hearing of the appeal, Learned Counsel for the respondent (plaintiff before the court below) has raised a preliminary objection regarding the maintainability of this miscellaneous First Appeal. In this regard, he places reliance on Order XXIII Rule 3, Order XLIII rule 1 A, Section 96 (3) and Section 104 of the CPC. He has also placed reliance on two decisions of the Apex Court in the cases of: (i) Banwari Lal Vs Smt Chando Devi (Through Lr) and Another AIR 1993 SC 1139 (hereinafter referred to as Banwari Lal's case) and (ii) Kishun Alias Ram Kishum (dead) through LRs VS by LRs AIR 2005 SCW 3823 (hereinafter referred to as Kishun Alias Ram Kishum's case) it is the contention of the Learned Counsel for the respondent that as the appellant is challenging the decree passed on compromise, no Miscellaneous First Appeal lies either against the order passed on the compromise petition or against the decree drawn eventually based on the said compromise. ( 3 ) ORDER XLIII Rule I which deals with appeals against non-appealable orders did contain a provision providing for appeal against an order passed on a compromise petition in sub rule (m) rule 1. The same came to be deleted 'by Act 104 of 1976 with effect from 01. 02. 1977. A new provision under Rule 1a came to be added to Order XLIII which reads as under:"right to challenge non-appealable orders in appeal against decrees. 1) Where any order is made under this Code against a party and thereupon any Judgment is pronounced against such party and decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. 1) Where any order is made under this Code against a party and thereupon any Judgment is pronounced against such party and decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. ,2) In an appeal against decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not have been recorded. " ( 4 ) A reading of Rule 1a of Order XLIII shows that aright is recognised in favour of the appellant to challenge non-appealable orders in an appeal filed against the decree. Rule 1a does not make a non-appealable order appealable. The party aggrieved by an order which is not appealable can make his grievance against such an order when an appeal is preferred against the decree passed in the suit. Sub Clause (2) of Rule IA of Order XLIII which is relevant for the present purpose states that in case where a compromise is recorded and based on the compromise a decree is passed or after refusing to record the compromise a decree is passed by the Court below, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not have been recorded. It is thus clear that the order recording the compromise is not appealable but where a decree is passed based on the compromise when that decree is assailed, it is open to the appellant to challenge the decree on the ground that the compromise should not have been recorded. In the instant case, the appellant seeks to challenge the decree passed apart from assailing the order recording the compromise. He could not have maintained an appeal against the order recording the compromise. He can certainly challenge the decree in appeal in terms of and in accordance with Section 96 of CPC if the bar enacted under sub clause 3 does not apply. When such an appeal is filed, it will be open to the appellant to contend that the order passed recording the compromise was illegal or in other words he could contend that the compromise should not have been recorded. When such an appeal is filed, it will be open to the appellant to contend that the order passed recording the compromise was illegal or in other words he could contend that the compromise should not have been recorded. ( 5 ) THE contention urged by the Learned Counsel for the appellant that Order XLIII Rule 1a recognises a separate and substantial right to maintain an appeal against a non-appealable order of the nature assailed in this appeal whereunder the compromise is recorded by order dated 21. 2. 2004 cannot be accepted. Therefore, the present Miscellaneous First Appeal cannot be maintained. For this view, support can be sought from the judgment of the Apex Court in banwari Lal's case, wherein it is made clear at paragraph 8 that prior to the deletion of Order xliii Rule 1 (m), an appeal was maintainable against an order recording or refusing to record an agreement, compromise or satisfaction. But by the amendment Act, that clause having been deleted, the result whereof is that no appeal is maintainable against an order recording or refusing to record an agreement or compromise under Rule 3 of Order XXIII. Being conscious that the right of appeal against the order recording a compromise or refusing to record a compromise was being taken away, a new Rule 1 A has been added to Order XLIII. The Apex court has further observed in paragraph 9 that a right has been given under Rule 1 A (2) of order XLIII to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. S. 96 (3) of the Code shall not be a bar to such an appeal because S. 96 (3) is applicable to cases where the factum of compromise or agreement is not in dispute. ( 6 ) THEREFORE, when appeal is filed against a decree invoking Order XLIII Rule 1 A, the appeal is not against an order but is against a decree. While challenging the decree, it is open for the appellant to challenge the correctness and validity of the order recording the compromise. Thus, the appeal filed has to be a Regular First Appeal and not a Miscellaneous First Appeal. While challenging the decree, it is open for the appellant to challenge the correctness and validity of the order recording the compromise. Thus, the appeal filed has to be a Regular First Appeal and not a Miscellaneous First Appeal. If a miscellaneous First Appeal is entertained against the order recording the compromise, then it would mean that the Court will be treating a non-appealable order appealable, thereby frustrating the very object of the Legislature in deleting Order XLIII Rule 1 (m ). To the same effect is the judgment rendered by the Apex Court in Kishun alias Ram Kishum's case. At paragraph 6 of the judgment, it is observed that no appeal is provided after 01. 02. 1977 against an order rejecting or accepting the compromise after an enquiry under the proviso to Order xxiii Rule 3 either by Section 104 or by Order XLIII, Rule 1 of the Code. Only when the acceptance of the compromise receives the imprimatur of the Court and it becomes a decree, or the Court proceeds to pass a decree on merits rejecting the compromise setup, it becomes appealable, unless of course, the appeal is barred by Section 96 (3) of the Code is what is held by the Apex Court. In view of the above, the present Miscellaneous First Appeal filed against the order recording the compromise and as also against the decree passed is not maintainable. Consequently, the same is rejected as not maintainable. However, liberty is reserved to the appellant to initiate such proceedings as are open to her in law. Counsel for the respondent submits that the appellant has abused the process of Court and therefore no liberty could be reserved to her. It is needless to observe the as and when the appellant initiate's appropriate proceedings, it is open to the respondent to take up all such contentions including the contention regarding the alleged abuse of the process of the Court. Parties to bear their respective costs. --- *** --- .