# Sri Ram Krishna Vivekanand Shishu Niketan v. Sri Onkarnath and Ors

- **Citation:** (2019) 2 ILRA 1224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-03
- **Case number:** Matter Under Article 227 No. 3147 of 2019
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-ram-krishna-vivekanand-shishu-niketan-v-sri-onkarnath-and-ors-44578
- **Pages:** 12

## Headnote

A. Code of Civil Procedure,1908 - Section
96(3) & 100 - Whether petition u/art.
227 maintainable or second appeal
would
lie
against
the
impugned
order/judgement of the first appellate
court or the same is barred by Section 96
(3) of the Code of Civil Procedure?

B. Compromise between parties-duly signed &
verified-
Appellate
Court
recorded
the
compromise in part and refused to record the
remainder (in favour of plaintiff)-further
passed a decree in terms thereof-to be
challenged by way of second appeal u/s. 100as the bar contained u/s. 96(3)-not attracted.

Held: - The preparation of decree or formal order
in terms of the impugned judgement is a ministerial
act. Even if a formal order has been prepared and
not decree in pursuance of the impugned
judgement of the appellate court, it would not
detract from the true nature of the order nor would
denude the petitioner of its right to avail the
statutory remedy of filing second appeal- Section 96
(3) is based on doctrine of estoppel which would
equally apply to a consent decree passed in appeal.
However, for other reasons stated in earlier part of
the judgement, the bar under Section 96 (3) C.P.C.
would not come in way of the petitioner in filing
second appeal.

Writ
Petition
Dismissed
(E-8)
2 All. Sri Ram Krishna Vivekanand Shishu Niketan Vs Sri Onkannath & Ors.
1225
List of Cases Cited :-

## Text

1224 INDIAN LAW REPORTS ALLAHABAD SERIES
31.03.2020, within a month and, therefore
till
31.03.2020
the
defendanttenant/petitioner may not be dispossessed
from the disputed shop. Learned counsel
for the plaintiff-landlord/respondent has
no serious objection to the aforesaid
request.

32. Considering the statement made
by
the
defendant-tenant/petitioner
as
aforenoted, it is provided as under:-

i).

If
the
defendanttenant/petitioner submits an undertaking
to the aforesaid affect before the court
below and also deposit Rs.30,000/- within
a month from today, then in that event he
shall not be dispossessed from the
disputed shop till 31.03.2020.

ii). In the event, either the
undertaking as aforesaid is not submitted
or a sum of Rs. 30,000/- is not deposited
within the stipulated period, then the
protection
given
to
the
defendanttenant/petitioner under this order shall
automatically stand vacated.

iii). In the event, the defendanttenant/petitioner does not vacate the
disputed shop and does not hand over its
vacant and peaceful possession to the
plaintiff-landlady/respondent on or before
31.03.2020,
then
apart
from
other
consequences
as
may
follow,
the
defendant-tenant/petitioner shall also pay
a sum of Rs. 1,000/- per day for each day
of delay after 31.03.2020, in vacating the
disputed shop and handing over its vacant
and peaceful possession to the plaintifflandlady/ respondent.
----------

(2019)10ILR A 1224

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2019
BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Matter Under Article 227 No. 3147 of 2019
(Civil)

Sri Ram Krishna Vivekanand Shishu
Niketan ...Petitioner
Versus
Sri Onkarnath and Ors. ...Respondents

Counsel for the Petitioner:
Sri Nirvikar Gupta, Sri Tosh Kumar
Sharma

Counsel for the Respondents:
Sri Shariq Shamim, Sri Rajneesh Tripathi,
Sri Tarun Agrawal, Sri Tarun Varma, Sri
Divakar Rai Sharma

A. Code of Civil Procedure,1908 - Section
96(3) & 100 - Whether petition u/art.
227 maintainable or second appeal
would
lie
against
the
impugned
order/judgement of the first appellate
court or the same is barred by Section 96
(3) of the Code of Civil Procedure?

B. Compromise between parties-duly signed &
verified-
Appellate
Court
recorded
the
compromise in part and refused to record the
remainder (in favour of plaintiff)-further
passed a decree in terms thereof-to be
challenged by way of second appeal u/s. 100as the bar contained u/s. 96(3)-not attracted.

Held: - The preparation of decree or formal order
in terms of the impugned judgement is a ministerial
act. Even if a formal order has been prepared and
not decree in pursuance of the impugned
judgement of the appellate court, it would not
detract from the true nature of the order nor would
denude the petitioner of its right to avail the
statutory remedy of filing second appeal- Section 96
(3) is based on doctrine of estoppel which would
equally apply to a consent decree passed in appeal.
However, for other reasons stated in earlier part of
the judgement, the bar under Section 96 (3) C.P.C.
would not come in way of the petitioner in filing
second appeal.

Writ
Petition
Dismissed
(E-8)
2 All. Sri Ram Krishna Vivekanand Shishu Niketan Vs Sri Onkannath & Ors.
1225
List of Cases Cited :-

1. Banwari Lal Vs. Chando Devi (Smt.)
(Through Lrs.) and another

2. Kishun alias Ram Kishun Vs. Behari

3. Thakur Prasad Vs. Bhagwandas Pushpa Devi

4. Bhagat Vs. Rajinder Singh

5. Daljit Kaur and another Vs. Muktar Steels
Private Limited and others

6. Rana Narang Vs. Ramesh Narang

7. Shyam Sunder Sharma Vs. Pannalal Jaiswal
and others

8. Ratan Singh Vs. Vijayasingh and others
[(2001) 1 SCC 469

9. Sheodan Singh Vs. Daryao Kunwar

10. Messrs Mela Ram and Sons Vs. The
Commissioner of Income Tax, Punjab

11. Thambi vs. Mathew (1987 (2) KLT 848)

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. An interesting question as to
whether second appeal would lie against
the impugned order/judgement of the first
appellate court or the same is barred by
Section 96 (3) of the Code of Civil
Procedure (for short 'Code' or 'C.P.C.')
arises for consideration in the instant
petition filed before this Court invoking
its supervisory jurisdiction under Article
227 of the Constitution. In case, an appeal
is maintainable, this Court in view of
availability of efficacious remedy under
the Code would decline to entertain the
instant petition.

2. The backdrop in which the
controversy has arisen is as follows:-

3. Two suits were instituted by the
petitioner (hereinafter referred to as 'the
plaintiff') bearing Original Suit Nos.381
of 1987 and 800 of 1987. In Original Suit
No.381 of 1987, the plaintiff prayed for
permanent injunction, declaration of its
title in respect of the suit property and
mandatory injunction against respondents
no.1 to 14 (hereinafter referred to as 'the
defendants 1st set). The declaration of
title was sought on the ground that the suit
property was donated to it by Dwarika
Nath Bhargava, Kedar Nath Bhargava and
Onkar Nath Bhargava by an unregistered
instrument dated 10.3.1969. Since then,
the plaintiff had been in possession of the
same as its owner without any objection
from any one and thus perfected its title
by adverse possession. In alternative, the
plaintiff also prayed for mandatory
injunction directing defendants 1 to 10 as
well as defendants 11, 12 and 13 to
execute registered gift deed in pursuance
of an alleged agreement dated 12.2.1969.
In Original Suit No.800 of 1987, the
plaintiff took the same stand and prayed
for
permanent
injunction
against
respondents 12 to 20 (hereinafter referred
to as 'the defendants 2nd set). Both the
suits were dismissed by the trial court by
judgement dated 14.12.2018. The trial
court held that the plaintiff was not able to
prove its title to the suit property; that it
also failed to prove its possession and
thus, also not entitled to declaration as
owner on basis of adverse possession.
Aggrieved by the judgement of the trial
court, the plaintiff filed an appeal under
Section 96 CPC. It was registered as Civil
Appeal No.213 of 2018. During pendency
of the appeal, the plaintiff entered into a
compromise with defendants 12/1 and 14
( Paper No.18 Ka/4). The compromise
was signed by the parties/their authorised
representatives and their signatures were
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
duly verified by respective counsel for the
parties except respondents 1 to 11 and 13,
who were discharged from the suit and
also the compromise. There is a map
annexed with the compromise, according
to which, the portion of land shown with
letters DEFH was admitted to be in
possession of the plaintiff and would
continue in its possession; ABHF was
recognised as belonging to defendant 12/1
and BCDH as belonging to defendant
no.14. On 22.1.2019 the date on which
compromise application Paper No.18 Ga
was filed before the appellate court, one
Kapil Dev Upadhyay filed an application
seeking his impleadment alleging title in
respect of 322.66 sq. yards of the suit
property on basis of a sale deed dated
18.1.2019 executed in his favour by
Narain Das Agrawal, power of attorney
holder of Desh Bandhu Kagaji (son of
defendant no.13 of Original Suit No.381
of 1987 and defendant no.1 of Original
Suit No.800 of 1987) and Manager of
Phool Chandra Kagaji HUF. According to
him, the original owner of the suit
property namely Thakur Madan Mohan Ji
Maharaj had executed registered lease
deed on 29.12.1987 in favour of Phool
Chandra Kagaji HUF with respect to 1320
sq. yards of the suit property. It is also his
case that Phool Chandra Kagaji HUF had
also obtained a sale deed dated 7.10.1987
(registered on 15.1.1988) in respect of the
same land from the Bhargavas, through
whom the plaintiff also claims title to the
suit property. It is common ground
between the parties that the predecessor of
Bhargava family namely Late Girdhar
Das Bhargava obtained the said property
by way of a registered perpectual lease
deed dated 21.8.1943 from the then
Shebiat of Thakur Madan Mohan Ji
Temple, the original owner of the
property. According to both the parties,
after death of Girdhar Das Bhargava, his
three sons inherited the suit property.
According to the plaintiff society, the
three sons of Girdhar Das Bhargava
donated the suit land to the plaintiff and
since then, it has been in possession of the
same.

4. The Appellate Court, by order dated
1.2.2019,
rejected
the
impleadment
application observing that intervention of a
third party at the appellate stage when the
matter had remained pending for last 32
years would not be in interest of justice.
However, on the same date, it proceeded to
pass order on the compromise application as
well. The Appellate Court accepted the
compromise in part i.e. in respect of
defendant no.12/1 and 14 but it refused to
decree the suit in favour of the plaintiff for
the suit land DEFH observing that as per
boundaries, it is the same land in respect of
which Kapil Dev Upadhyay had filed
impleadment application claiming title on
basis of registered lease deed of thirty years.
The Appellate Court has held that the
plaintiff had failed to bring on record any
document to prove its title; consequently, the
compromise application in respect of land
shown with letters DEFH was rejected. In
pith and substance, the Appellate Court, in
absence of any document of title with regard
to the portion of land shown with letters
DEFH, declined to grant declaration in
favour of the plaintiff. The operative part of
the order/judgement of the Appellate Court
dated 1.2.2019 reads thus:-

ÞmijksDr lEiw.kZ fo'ys"k.k ds izdk'k esa
laf/k i= 18d@1&3 ,oa mlds lkFk layXu uD'kk
laf/k i= 18d@4 esa nf'kZr lEifRr fu'kkuh v{kj
Mh- bZ- ,Q- ,p dks NksM+dj 'ks"k Hkkx gsrq laf/k i=
o uD'kk laf/k i= lR;kfir fd;k tkrk gS A

rnuqlkj laf/k i= 18d@1&3 ,oa uD'kk
laf/k i= 18d@4 ds vuqlkj ;g flfoy vihy
2 All. Sri Ram Krishna Vivekanand Shishu Niketan Vs Sri Onkannath & Ors.
1227
fu.khZr dh tkrh gSA fu'kkuh v{kj Mh- bZ- ,Q- ,p
ls nf'kZr lEifRr dks NksM+dj laf/k i= 18d@1&3
,oa uD'kk laf/k i= 18d@4 fMdzh dk Hkkx gksxkA

i{kdkj viuk&viuk okn O;; Lo;a
ogu djsaxsA

i=koyh fu;ekuqlkj nkf[ky nQ~rj gksAß

5. Being aggrieved by the above
order/judgement of the Appellate Court,
declining to record compromise in respect
of the claim of the plaintiff while deciding
the appeal, the instant petition has been
filed.

6.
 Sri
Diwakar
Rai
Sharma
Advocate
appearing
on
behalf
of
respondent no.14 raised a preliminary
objection relating to maintainability of the
instant petition under Article 227 of the
Constitution.
Sri
Tarun
Agrawal
Advocate appearing on behalf of Kapil
Dev Upadhyay, the applicant seeking
impleadment also submitted that the
petitioner has remedy of challenging the
impugned judgement by filing a second
appeal under Section 100 CPC. It is urged
that since the remedy is available under
the Code itself, therefore, the present
petition
under
Article
227
of
the
Constitution should not be entertained and
the petitioner should be relegated to the
remedy available under the Code. It is
urged by them that a second appeal would
lie against the impugned order/judgement
in view of Order 43 Rule 1-A read with
Order 42 Rule 1 CPC and Section 100 and
108 CPC. In support of their contention,
they have placed reliance upon the
judgements of the Supreme Court in
Banwari Lal Vs. Chando Devi (Smt.)
(Through Lrs.) and another, Kishun
alias Ram Kishun Vs. Behari and a
Division Bench judgement of Madhya
Pradesh High Court in Thakur Prasad
Vs. Bhagwandas.

7. On the other hand, Sri Nirvikar
Gupta, learned counsel appearing on
behalf of plaintiff-petitioner submitted
that
the
impugned
order
recording
compromise in part and declining to record
other part would not amount to a decree. He
points out that even no decree has been
drawn in pursuance of the impugned order.
It is urged that clause (m) of Rule 1 of
Order 43 under which an appeal was
maintainable against an order recording or
refusing
to
record
an
agreement,
compromise or satisfaction was omitted by
Act No.104 of 1976 w.e.f. 1.2.1977.
Consequently, it is submitted that no appeal
would lie against such an order. He further
submitted that since rights of parties have
not been decided under the impugned order,
therefore, it would not amount to a
judgement nor would result in a decree,
therefore, Order 43 Rule 1-A (2) will also
have no application. He placed a strong
reliance on Section 96 (3) CPC and the
same judgments upon which reliance was
placed by the other side in contending that
no appeal is maintainable from a decree
passed by court with consent of the parties.

8.

Before
adverting
to
the
submissions advanced by learned counsel
for the parties, certain amendments
carried out in the Code by Act No.104 of
1976 are worth noticing. Order 23 Rule 3
CPC envisages compromise of suit. Prior
to its amendment by Act No.104 of 1976,
it read as follows in its application to the
State of Uttar Pradesh:-

"R.3. 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, or
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
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 suit."

" ALLAHABAD.- (1) In Rule 3
of Order 23 between the words " or
compromise" and "or where" insert the
words "in writing duly signed by parties";
and between the words "subject matter of
the suit" and the words "the Court" insert
the words "and obtains an instrument in
writing duly signed by the plaintiff."

(2) At the end of the Rule 3 of
Order 23 add the following, namely:

"Provided that the provisions of
this rule shall not apply to or in any way
affect the provisions of Order XXXIV,
Rules 3, 5 and 8.

Explanation.- The expression
"agreement" and "compromise", include a
joint statement of the parties concerned or
their counsel recorded by the Court, and
the expression "Instrument" includes a
statement of the plaintiff or his counsel
recorded by the Court"- U.P. Gaz., 31-81974, Pt.II, p.52 (31-8-1974)"

9. Order 43 Rule 1 (m) enabled a
party aggrieved by an order passed under
Rule 3 of Order 23 recording or refusing
to record an agreement, compromise or
satisfaction to challenge the order in
appeal. Clause (m) was to the following
effect:-

"(m) an order under Rule 3 of
Order XXIII recording or refusing to
record an agreement, compromise or
satisfaction;"

10. Section 96 (3) placed a specific
embargo on maintainability of appeal
from a decree passed by the court with the
consent of parties. It reads thus:-

"96 (3). No appeal shall lie from
a decree passed by the Court with the
consent of parties."

11. Under Order 43 Rule 1 (m), an
order recording or refusing to record an
agreement, compromise or satisfaction
could be directly challenged by filing an
appeal even before the final judgement is
passed in the suit. In cases where the
decree is passed by the court with consent
of parties, no appeal would lie in view of
the prohibition contained under Section
96 (3). It was settled by a series of
precedents that the prohibition under
Section 96 (3) would remain limited to
cases where the parties, after complying
with the procedure prescribed under
Order 23 Rule 3 CPC, invites the court to
pass decree in a particular manner to
which they had agreed to and the court
acts accordingly. However, in cases
where a party disputes being signatory to
the compromise or the compromise
decree is challenged on ground of fraud,
undue influence or misrepresentation, the
bar stipulated under Section 96 (3) would
not come in way of filing an appeal. It
was also open to such a party to file a
regular
civil
suit
challenging
the
compromise decree on the ground of it
being void or voidable.

12. After the Code was amended by
Act No.104 of 1976, clause (m) of Rule 1
of Order 43 was omitted, meaning thereby
that an order recording or refusing to
record an agreement, compromise or
satisfaction is no more appealable. By the
same amendment, Rule 1-A was inserted
in Order 43. Sub-rule (2) thereof, which is
relevant for our purpose, is as follows:-
2 All. Sri Ram Krishna Vivekanand Shishu Niketan Vs Sri Onkannath & Ors.
1229

"(2) In an appeal against a
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."

13. At the same time, certain
amendments were also made in Rule 3 of
Order 23 conferring jurisdiction upon the
same court to decide whether adjustment or
satisfaction has been arrived at where it is so
alleged by one party while denied by the
other. It has also been made mandatory that
the compromise should be in writing and
signed by the parties. An Explanation has
also been inserted clarifying that an
agreement or compromise, which is void or
voidable under the Indian Contract Act,
1872, shall not be deemed to be lawful
within the meaning of this rule. Rule 3-A,
inserted by the same Amending Act of 1976
specifically bars a suit before civil court for
setting aside a compromise decree on the
ground that it was not lawful. Order 23 Rule
3 and Rule 3-A as amended by Act No.104
of 1976 are as follows:-

"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]:

[Provided that where it is
alleged by one party and denied by the
other that an adjustment or satisfaction
has been arrived at, the Court shall
decide the question; but no adjournment
shall be granted for the purpose of
deciding the question, unless the Court,
for reasons to be recorded, thinks fit to
grant such adjournment.]

[Explanation.-An agreement or
compromise which is void or voidable
under the Indian Contract Act, 1872 (9 of
1872), shall not be deemed to be lawful
within the meaning of this rule.]"

"3-A. Bar to suit.- No suit shall
lie to set aside a decree on the ground
that the compromise on which the decree
is based was not lawful."

14. In Pushpa Devi Bhagat Vs.
Rajinder Singh, a two Judge Bench of
the Supreme Court, after considering Rule
3 and 3-A of Order 23, summed up the
statement of law emerging from these
provisions as follows:-

"13.1. no appeal is maintainable
against a consent decree having regard to the
specific bar contained in Section 96(3) CPC;

13.2. no appeal is maintainable
against the order of the court recording
the compromise (or refusing to record a
compromise) in view of the deletion of
clause (m) of Rule 1, Order 43;

13.3. no independent suit can be
filed for setting aside a compromise
decree on the ground that the compromise
was not lawful in view of the bar
contained in Rule 3-A; and

13.4. a consent decree operates
as an estoppel and is valid and binding
unless it is set aside by the court which
passed the consent decree, by an order on
an application under the proviso to Rule 3
of Order 23."
1230 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Even before the above principles
were laid down by the Supreme Court,
another Division Bench in Banwari Lal
(supra) considered the interplay between
Order 43 Rule 1-A added by Act No.104
of 1976 and Section 96 (3) as well as the
impact of deletion of clause (m) of Rule 1
of Order 43. The Supreme Court has
observed that the amendments were
carried out taking into consideration the
past experiences, as on many occasions,
parties used to file compromise on basis
of which suit used to be decreed but later
on, for one reason or the other, the
validity
of
such
compromise
was
challenged by way of separate suit
dragging the litigation for years together.
By the amendments made by 1976 Act,
special requirements were introduced
before a compromise is recorded by the
court. The compromise should be lawful,
must be in writing and signed by the
parties. The relevant observations made in
this regard by the Supreme Court in
Banwari Lal (supra) are extracted
below:-

"7. By adding the proviso along
with an explanation the purpose and the
object of the amending Act appears to be
to compel the party challenging the
compromise to question the same before
the court which had recorded the
compromise in question. That court was
enjoined
to
decide
the
controversy
whether the parties have arrived at an
adjustment in a lawful manner. The
explanation made it clear that an
agreement or a compromise which is void
or voidable under the Indian Contract Act
shall not be deemed to be lawful within
the meaning of the said rule. Having
introduced the proviso along with the
explanation in Rule 3 in order to avoid
multiplicity
of
suit
and
prolonged
litigation, a specific bar was prescribed
by Rule 3-A in respect of institution of a
separate suit for setting aside a decree on
basis of a compromise saying:

"3-A. Bar to suit.-No suit shall
lie to set aside a decree on the ground
that the compromise on which the decree
is based was not lawful."

8. Earlier under Order 43, Rule
1(m), an appeal was maintainable against
an order under Rule 3 of Order 23
recording or refusing to record an
agreement, compromise or satisfaction.
But by the amending Act aforesaid that
clause has been deleted, the result
whereof is that now no appeal is
maintainable against an order recording
or refusing to record an agreement or
compromise under Rule 3 of Order 23.
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 43 which is as
follows:"

16. The 1976 Amendment, while on
one hand conferred right to challenge
decree passed in suit after recording a
compromise or refusing to record a
compromise by filing regular appeal but
at the same time, Section 96 (3) of the
Code, which says that no appeal shall lie
from a decree passed by the court with the
consent of the parties, was left untouched.
The impact of insertion of Rule 1-A (2)
upon Section 96 (3) was explained thus:-

"9. Section 96(3) of the Code
says that no appeal shall lie from a decree
passed by the Court with the consent of
the parties. Rule 1-A(2) has been
introduced saying that against a decree
passed in a suit after recording a
compromise, it shall be open to the
2 All. Sri Ram Krishna Vivekanand Shishu Niketan Vs Sri Onkannath & Ors.
1231
appellant to contest the decree on the
ground that the compromise should not
have been recorded. When Section 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.
One such remedy available was by filing
the appeal under Order 43, Rule 1(m). If
the order recording the compromise was
set aside, there was no necessity or
occasion to file an appeal against the
decree. Similarly a suit used to be filed
for setting aside such decree on the
ground that the decree is based on an
invalid and illegal compromise not
binding on the plaintiff of the second suit.
But after the amendments which have
been introduced, neither an appeal
against
the
order
recording
the
compromise nor remedy by way of filing a
suit is available in cases covered by Rule
3-A of Order 23. As such a right has been
given under Rule 1-A(2) of Order 43 to a
party, who challenges the recording of the
compromise, to question the validity
thereof
while
preferring
an
appeal
against the decree. Section 96(3) of the
Code shall not be a bar to such an appeal
because Section 96(3) is applicable to
cases where the factum of compromise or
agreement is not in dispute."

17. Once again, in paragraph 13 of
the Law Report, the Supreme Court
explained the interplay between the above
provisions as follows:-

"13. When the amending Act
introduced a proviso along with an
explanation to Rule 3 of Order 23 saying
that where it is alleged by one party and
denied by other that an adjustment or
satisfaction has been arrived at, "the
Court shall decide the question", the
Court
before
which
a
petition
of
compromise is filed and which has
recorded such compromise, has to decide
the question whether an adjustment or
satisfaction had been arrived at on basis
of any lawful agreement. To make the
enquiry in respect of validity of the
agreement or the compromise more
comprehensive, the explanation to the
proviso says that an agreement or
compromise "which is void or voidable
under the Indian Contract Act..." shall not
be deemed to be lawful within the
meaning of the said Rule. In view of the
proviso read with the explanation, a
Court which had entertained the petition
of Compromise has to examine whether
the compromise was void or voidable
under the Indian Contract Act. Even Rule
1(m) of Order 43 has been deleted under
which an appeal was maintainable
against an order recording a compromise.
As
such
a
party
challenging
a
compromise can file a petition under
proviso to Rule 3 of Order 23, or an
appeal under Section 96(1) of the Code,
in which he can now question the validity
of the compromise in view of Rule 1-A of
Order 43 of the Code."

(emphasis supplied)

18. Again, in Kishun alias Ram
Kishun (supra) it was held that where the
compromise is contested, the bar under
Section 96 (3) will not come into play.
The order passed by the court on such
contest and the resultant decree would be
subject to appeal and second appeal. It has
been observed that "when there is a
contest on the question whether there was
a compromise or not, a decree accepting
the compromise on resolution of that
controversy, cannot be said to be a decree
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
passed with the consent of the parties.
Therefore, the bar under Section 96(3) of
the Code could not have application. An
appeal and a second appeal with its
limitations would be available to the party
feeling aggrieved by the decree based on
such a disputed compromise or on a
rejection of the compromise set up."

19. The law laid down in Ram
Kishun has been reiterated by the
Supreme
Court
in
a
more
recent
judgement in Daljit Kaur and another
Vs. Muktar Steels Private Limited and
others holding that bar under Section 96
(3) CPC will not get attracted where the
compromise is disputed. In my considered
opinion, the same would also be the
position where the court refuses to record
compromise or part of it on the ground
that it is not lawful, as in the instant case.

20. The legal position which thus
emerges
after
amendment
of
Civil
Procedure Code by Act No.104 of 1976 is
that the appellant in an appeal against a
decree passed in suit after recording a
compromise or refusing to record a
compromise is entitled to contest the
decree on the ground that the compromise
should, or should not, have been recorded
(Order 43 Rule1-A). The same principle
would apply where the court records some
part of the compromise while declines to
record the remaining part. In such cases,
the bar contained under Section 96 (3)
CPC would not get attracted. These
principles would also apply to appeals
from appellate decrees in view of Order
42 Rule 1 read with Section 108 CPC.

21. In the instant case, as would
appear from the facts noted above, the
appellate court, while deciding appeal
under Section 96 CPC, has passed a
composite order recording compromise in
part and refusing to record other part of
compromise in so far as it relates to the
plaintiff-petitioner. On the same date, the
appellate court has also proceeded to decide
the appeal finally. This takes the Court to
the other limb of the argument of learned
counsel for the petitioner i.e. the order
passed by the appellate court would not
qualify to be a decree, as there had been no
adjudication of its rights. Consequently, no
appeal would lie at this stage.

22. The submission made in this
regard, albeit attractive, is bereft of any
substance. A plain reading of the order
passed by the appellate court on 1.2.2019
reveals that the appellate court has not
only recorded the compromise in part and
refused to record the remainder, but has
also proceeded to pass a decree in terms
thereof. The order specifically provides
that the compromise application and the
map would form part of the decree except
in respect of property shown with letters
DEFH. There is a specific direction for
consigning the file to the record room.
The operative part evinces a clear
intention that the proceedings of the
appeal have thereby terminated. It is not
the case of the petitioner that the appellate
court is incompetent to pass a composite
order verifying/refusing to verify the
compromise and also pass decree in
accordance therewith on the same date.
The main thrust of the argument of
learned counsel for the petitioner is that
the appellate court has not adjudicated the
rights of the plaintiff in the suit land,
consequently, the order impugned would
not qualify to be a 'decree' within the
meaning of Section 2 (2) CPC.

23. In Rana Narang Vs. Ramesh
Narang, the Supreme Court has held that
2 All. Sri Ram Krishna Vivekanand Shishu Niketan Vs Sri Onkannath & Ors.
1233
a compromise decree is as much a decree
as a decree passed on adjudication. It is
not merely an agreement between the
parties. In passing the decree by consent,
the court adds its mandate to the consent.

24. A similar controversy arose
before a Three Judges Bench of the
Supreme
Court
in
Shyam
Sunder
Sharma Vs. Pannalal Jaiswal and
others though in a slightly different
context. The issue before the Supreme
Court was whether an order of dismissal
of appeal as barred by limitation would
amount to a decree or not. The contention
before the Supreme Court was that in
such a case there is no adjudication of lis
on merits, therefore, it is merely an 'order'
and would not amount to a 'decree'. The
Supreme Court, while deciding the said
issue, considered an earlier judgement by
Two Judges Bench in Ratan Singh Vs.
Vijayasingh and others, wherein it was
held that dismissal of an application for
condonation of delay would not amount to
a decree, therefore, dismissal of appeal as
time barred was also not a decree. The
Supreme
Court
overruled
the
said
judgement relying on previous judgments
by Larger Bench taking a contrary view.
The Supreme Court observed as follows:-

"12. Learned counsel placed
reliance on the decision in Ratansingh vs.
Vijaysingh and others [(2001) 1 SCC 469
] rendered by two learned Judges of this
Court and pointed out that it was held
therein that dismissal of an application
for condonation of delay would not
amount to a decree and, therefore,
dismissal of an appeal as time barred was
also not a decree. That decision was
rendered in the context of Article 136 of
the Limitation Act, 1963 and in the light
of the departure made from the previous
position obtaining under Article 182 of
the Limitation Act, 1908. But we must
point out with respect that the decisions of
this Court in Messrs Mela Ram and Sons
and Sheodan Singh (supra) were not
brought to the notice of their Lordships.
The principle laid down by a three Judge
Bench of this Court in M/s Mela Ram and
Sons (supra) and that stated in Sheodan
Singh (supra) was, thus, not noticed and
the view expressed by the two Judge
Bench, cannot be accepted as laying
down the correct law on the question......"

25. The judgement rendered in
Sheodan Singh Vs. Daryao Kunwar was
rendered by Four Judges Bench of the
Supreme Court holding thus:-

"We are therefore of opinion
that where a decision is given on the
merits by the trial court and the matter is
taken in appeal and the appeal is
dismissed on some preliminary ground
like limitation or default in printing, it
must be held that such dismissal when it
confirms the decision of the trial court on
the merits, itself amounts to the appeal
being heard and finally decided on the
merits whatever may be the ground for
dismissal of the appeal."

26. In Messrs Mela Ram and Sons
Vs. The Commissioner of Income Tax,
Punjab on which reliance was placed by
the Supreme Court in Shyam Sunder
Sharma (supra), it was held as follows:-

".......although
the
Appellate
Assistant Commissioner did not hear the
appeal on merits and held that the appeal
was barred by limitation his order was
under Section 31 and the effect of that order
was to confirm the assessment which had
been made by the Income-tax Officer."
1234 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The Supreme Court concluded
by holding that dismissal of an appeal on
ground of delay in filing the same has the
effect of confirming the decree appealed
against. Para 10 from the said judgement
reads thus:-

"10.
The
question
was
considered in extenso by a Full Bench of
the Kerala High Court in Thambi vs.
Mathew (1987 (2) KLT 848). Therein,
after referring to the relevant decisions on
the question it was held that an appeal
presented out of time was nevertheless an
appeal in the eye of law for all purposes
and an order dismissing the appeal was a
decree that could be the subject of a
second appeal. It was also held that Rule
3A
of
Order
XLI
introduced
by
Amendment Act 104 of 1976 to the Code,
did not in any way affect that principle.
An appeal registered under Rule 9 of
Order XLI of the Code had to be disposed
of according to law and a dismissal of an
appeal for the reason of delay in its
presentation, after the dismissal of an
application for condoning the delay, is in
substance and effect a confirmation of the
decree appealed against. Thus, the
position that emerges on a survey of the
authorities is that an appeal filed along
with an application for condoning the
delay in filing that appeal when dismissed
on the refusal to condone the delay is
nevertheless a decision in the appeal. "

28. The order by the appellate court
deciding appeal results in merger of the
judgement of the trial court with that of
the appellate court. A perusal of the
operative part of the judgement would
reveal that the judgement passed by the
trial court stands superseded by the decree
now passed by the appellate court
whereunder rights of respondents 12/1
and 14 have been specifically recognised,
while that of the plaintiff in respect of part
of the suit land shown with letters DEFH
has not been accepted. It is the judgement
of the appellate court which would govern
the rights of the parties and not the one
passed by the trial court.

29. The questions (i) whether the
appellate court was justified in declining
to record part of the compromise, (ii)
whether it was justified in dismissing the
claim of the plaintiff straightaway after
refusing to record part of the compromise
without giving the petitioner opportunity
to establish its claim on basis of other
material on record and (iii) whether the
finding recorded in the impugned order
that there is no evidence on record to
establish the title of the plaintiff-appellant
in respect of property DEFH may or may
not be correct, but on that score the
remedy of further appeal provided under
the Code would not be lost. The nature of
the order has to be ascertained in
accordance with the legal principles
discussed above. The preparation of
decree or formal order in terms of the
impugned judgement is a ministerial act.
Even if a formal order has been prepared
and not decree in pursuance of the
impugned judgement of the appellate
court, it would not detract from the true
nature of the order nor would denude the
petitioner of its right to avail the statutory
remedy of filing second appeal.

30. Before parting, I would also like
to deal with an alternative submission
made by Sri Tarun Agrawal, learned
counsel appearing for the applicant
seeking impleadment. He urged that the
bar contained under Section 96 (3)
regarding filing of appeal against consent
decree is only applicable to first appeals
and not to second appeals filed under
2 All. Shrawan @ Sarvan Gupta Vs Smt. Renu Kushwaha & Ors.
1235
Section
100
CPC.
However,
the
submission is devoid of any force. Section
108 CPC specifically provides that the
provisions of Part VII relating to appeals
from original decree shall as far as may be
applied to appeals from appellate decrees.
Section 96 (3) is contained in Part VII.
Section 96 (3), as noted above, is based
on doctrine of estoppel which would
equally apply to a consent decree passed
in appeal. However, for other reasons
stated in earlier part of the judgement, the
bar under Section 96 (3) C.P.C. would not
come in way of the petitioner in filing
second appeal.

31. In consequence, the instant
petition is dismissed on the ground of
availability of alternative remedy of
second appeal under the Code itself. The
petitioner shall be free to avail the said
remedy, in which event, nothing observed
herein would be taken as expression of
opinion on merit of the case.

32. Office is directed to return
certified
copies
of
the
impugned
judgments to counsel for the petitioner
after retaining photo copies on record.
----------

(2019)10ILR A 1235

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Matter Under Art. 227 No. 6077 of 2019
(Civil)

Shrawan @ Sarvan Gupta ...Petitioner
Versus
Smt. Renu Kushwaha & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Siddharth Nandan

Counsel for the Respondents:
Sri Anoop Trivedi, Sri Nitin Chandra
Mishra

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972Rule 32- U.P. Act 13 of 1972- Section 21-
Code of Civil Procedure, 1908- Section
151- rejecting the restoration application, filed
by the applicant-petitioner for recall of the exparty judgment and decree dated 07.04.2018

Held : - The alleged substituted service was
shown with respect to the tenant-defendant
1st set and the tenant-defendant 2nd set by
single publication in one and the same
newspaper i.e. "Jagat Asha" and the court
below itself held in its order dated 08.04.2019
filed by the tenant-defendant 1st set for
setting aside the judgment and decree dated
07.04.2018, that the substituted service by
publication in the newspaper "Jagat Asha" is
not valid. Therefore, there was no valid
substituted service upon the tenant-defendant
2nd set. (Para-30). Relevant Paras 27 to 29.

Writ Petition allowed (E-8)

List of Cases Cited: -

1. Ram Prakash Agarwal and Another Vs. Gopi
Krishnan (Dead through L.Rs.) and Others
2013(4) AWC 3856(SC)

2. Heera Lal Sharma Vs. XVth Addl. District
Judge, Kanpur & others 1983 ARC 535

3. Tara Shankar Vs. Vinod Kumar Verma and
others 1993 (2) ARC 6

4. Indian Bank vs M/S Satyam Fibres (India}
Pvt.Ltd, (1996) 5 SCC 550

5. A.R. Antulay Vs. R.S. Nayak & Anr. (1988) 2
SCC 602