JUDGMENT :- Heard Mr. Gangapurwala. Advocate for the appellant and Mr. Gore, Advocate for the sole respondent. 2. In view of the facts and circumstances, the appeal is admitted and taken up for final hearing by consent of the parties. 3. The appellant has preferred this appeal against the order passed by Adhoc District Judge, Aurangabad, dated 13.8.2007, dismissing the present appellant's appeal and confirming the order passed by Civil Judge, Junior Division, Paithan, whereby document at Exhibit 18 was stated as a compromise and decree was directed to be passed as per Exhibit 18 and map filed along with Exhibit 25, whereby defendant was also directed to hand over possession of 51 Ares land to the plaintiff as shown by D.I.L.R.. 4. As can be seen from the record, Survey No.6, Hissa No.2 of Village-Kausa, Taluka-Paithan, District-Aurangabad is a subject matter involved in the suit. There was dispute between the parties alleging that the defendant had encroached over the suit property of the plaintiff to certain extent and, therefore, the suit came to be filed for declaration and possession of encroached property. 5. In the course of the suit, parties agreed to get appointed D.I.L.R. as a Court Commissioner and it is the case of the respondent that the said document of agreement Exhibit 18, which was filed in Regular Civil Suit No.185/1999 before the trial Court, was a compromise between the parties within the meaning of Order 23, Rule 3 of the Civil Procedure Code. Consequently, D.I.L.R. was appointed and his report was received. Dispute was raised on behalf of the present appellant/ defendant on receipt of the report on the ground that D.I.L.R. had not drawn the map of the property as per the procedure and, therefore, the lower Court was requested that the D.I.L.R. should be called as a witness so as to get the opportunity to cross-examine him to demonstrate the illegalities committed by him while measuring the properties and drawing the map. This plea was objected to by the present respondent on the ground that once the compromise was effected between the parties, the present appellant/defendant was bound by the same and, therefore, it was incumbent upon the lower Court to pass the decree on the basis of compromise and the map filed with Exhibit 25 in the lower Court. This plea was objected to by the present respondent on the ground that once the compromise was effected between the parties, the present appellant/defendant was bound by the same and, therefore, it was incumbent upon the lower Court to pass the decree on the basis of compromise and the map filed with Exhibit 25 in the lower Court. Learned trial Judge, after hearing both the parties, came to the conclusion that the document Exhibit 18 could be treated as compromise arrived at between the parties within the meaning of Order 23, Rule 3 of the Civil Procedure Code and proceeded to pass a decree on the basis of document of Exhibit 18 as well as map drawn by the Court Commissioner, D.I.L.R .. 6. Being aggrieved by the said order, appeal was preferred. The lower Appellate Court, after hearing both the parties, concurred with the findings recorded by the trial Court and held that document Exhibit 18 was compromise within the meaning of relevant provisions and, therefore, appeal came to be dismissed. Hence, the present Second Appeal. 7. Now, in order to understand the nature of the dispute between the parties, it would be necessary to look into the document Exhibit 18 in order to appreciate the entire state of affairs in proper perspective. Exhibit 18 is in vernacular. In para 1 thereof, it is agreed between the parties that in both the suits, D.I.L.R. should be appointed as Court Commissioner and he should be asked to measure Survey Nos.5 and 6 in presence of the plaintiff and defendant and accordingly the boundaries should be demarcated and map should be drawn and thereafter his report should be filed in the Court. Para 2 thereof stated that after completion of the Court Commissioner's work, if it is found that either of the party had made encroachment on the land of either side, the possessions of encroached properties would be handed over and Court would be assured that the concerned encroacher party would not in future make encroachment. Para 3 of the said document further stipulated that thereafter there would be no objection if the defendant sold his standing sugarcane and Court would be informed to vacate status quo order, which was in vogue. Para 3 of the said document further stipulated that thereafter there would be no objection if the defendant sold his standing sugarcane and Court would be informed to vacate status quo order, which was in vogue. Para 4 of the document further narrates the effect that both the suits would be stayed pending receipt of the D.I.L.R.'s. report and after receipt of the report, compromise would be effected and that compromise would be agreeable to both the parties. It was further averred that since the parties were related to each other, it was necessary to preserve the cordial relations between the parties and, therefore, appointment of D.I.L.R. was necessary. Prayer clause of the said application accordingly was made to the effect that appointment of D.I.L.R. could be made and he should be asked to demark the property and make report to the Court with map. 8. It appears from the record that accordingly D.I.L.R. was appointed and measurements were taken and map was submitted to the Court. At this juncture, the appellant/defendant raised objection to the Court Commissioner/D.I.L.R.'s. report on the ground that D.I.L.R. had not issued notices to all holders of Survey Nos.5 and 6, further it was pointed out that D.I.L.R. had not considered the application filed by the defendant at the time of measurement. On these grounds, it was submitted that the defendant was not willing to follow the contents of Exhibit 18. The trial Court, after hearing both the parties, held that it was document of agreement. Similar view was taken by the lower appellate Court, holding that the document Exhibit 18 was in conformity of provisions of Order 23, Rule 30f the Civil Procedure Code as it was signed by both the parties and their Advocates and it was on the basis of submission of both the parties and their Advocates that D.I.L.R. was appointed by the trial Court so as to comply terms and conditions of this compromise pursis or application and thus Exhibit 18 was held to be legal compromise. 9. Now, the question remains whether document at Exhibit 18, which is said to be a compromise cum agreement between the parties, would be said to be legal and valid agreement submitting and surrendering all the rights by both the parties by way of contents of the said document. 9. Now, the question remains whether document at Exhibit 18, which is said to be a compromise cum agreement between the parties, would be said to be legal and valid agreement submitting and surrendering all the rights by both the parties by way of contents of the said document. In my considered view, the document cannot be said to be within the meaning of Order 23, Rule 3 of the Civil Procedure Code because there was no provision made therein as to what was to be the course of action if any illegality was committed by the D.I.L.R. while admeasuring the properties involved. Definitely it cannot be presumed that both the parties surrendered their right to raise challenge to procedural or any other illegality, if any, committed by the D.I.L.R. while working as a Court Commissioner. This was precisely the contention raised by the appellant! defendant before the trial Court when he sought to examine the Court Commissioner as a witness so as to seek opportunity to demonstrate the illegalities committed by the D.I.L.R. while working as Court Commissioner. 10. The provisions of Order 23, Rule 3 of the Civil Procedure Code read thus: "3.Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit." Thus, it is clear that the document would be a compromise where it is proved to the satisfaction of the Court that the suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties. In the present case, it cannot be said that the Court satisfied itself regarding the alleged illegalities committed by the D.I.L.R. by giving opportunity to defendant to cross-examine the D.I.L.R., calling him as a Court witness. In the present case, it cannot be said that the Court satisfied itself regarding the alleged illegalities committed by the D.I.L.R. by giving opportunity to defendant to cross-examine the D.I.L.R., calling him as a Court witness. Learned Advocate for the respondent sought to put reliance on the Apex Court judgment in the case of Pushpadevi Bhagat (died) through L.R. Smt. Sadhnarai Vs. Rajindersingh and others, reported in 2006(3) Mah.L.R. 485 (S.C.). My attention was invited to contents of para 14, which reads thus: "14. What is the difference between the first part and the second part of Rule 3 ? The first part refers to situations where an agreement or compromise is entered into in writing and signed by the parties. The said agreement or compromise is placed before the Court. When the Court is satisfied that the suit has been adjusted either wholly or in part by such agreement or compromise in writing and signed by the parties and that it is lawful, a decree follows in terms of what is agreed between the parties. The agreement/compromise spells out the agreed terms by which the claim is admitted or adjusted by mutual concessions or promises, so that the parties thereto can be held to their promises in future and performance can be enforced by the execution of the decree to be passed in terms of it. On the other hand, the second part refers to cases where the defendant has satisfied the plaintiff about the claim. This may be by satisfying the plaintiff that the claim cannot be or need not be met or performed. It can also be by discharging or performing the required obligation. Where the defendant so 'satisfies' the plaintiff in respect of the subject-matter of the suit, nothing further remains to be done or enforced and there is no question of any 'enforcement' or 'execution' of the decree to be passed in terms of it." In my considered view, there cannot be two opinions regarding the ratio laid down by the Apex Court in this ruling. However, the question is whether the document at Exhibit 18 is in conformity with the provisions of Order 23, Rule 3 of the Civil Procedure Code and the answer is in the negative. However, the question is whether the document at Exhibit 18 is in conformity with the provisions of Order 23, Rule 3 of the Civil Procedure Code and the answer is in the negative. At the most the document could be said to be conditional agreement in the sense that the parties had reserved right to raise objection if at all illegality was suspected or found to be committed by the D.I.L.R. at the time when the land was measured and map was drawn pursuant to the order of the Court. Bearing the repetition, I must note that it was duty of the trial Court to give opportunity to satisfy itself that there was no illegality committed by the Court Commissioner who was D.I.L.R. in question. 11. Therefore, I am inclined to set aside the judgments and orders passed by both the courts below and remand the matter to the trial Court to the extent that D.I.L.R. should be summoned as a Court witness to prove the map drawn by him of the suit properties and to give opportunity to either of the party to cross-examine the witness D.I.L.R. so as to exclude any possibility of commission of any illegality in this regard as alleged on behalf of the appellant. 12. Hence, the appeal is allowed to that extent with direction that the matter is remanded to the trial Court, who shall complete the process of recording the evidence of the D.I.L.R. after giving opportunity to cross-examine him by both the parties and then pass the decree, if any, according to law. With these directions, the appeal stands disposed of. The trial Court to complete the exercise within a period of two months from the date of receipt of the writ of this Court. Consequently, Civil Application No.8405/2007 also stands disposed of with no order as to costs. It is clarified that if it is found that there is no illegality committed by the Court Commissioner, then the trial Court would be at liberty to act upon the compromise. Appeal allowed.