Patna High Court
Lagandeo Singh vs Satyadeo Singh And Ors. on 5 May, 1992
Equivalent citations: AIR1992PAT153, AIR 1992 PATNA 153, (1992) 2 BLJ 169, (1992) 2 CIVLJ 821, (1992) 2 PAT LJR 184
Author: B.N. Agrawal
Bench: B.N. Agrawal
JUDGMENT B.N. Agrawal, J.
1. Defendant No. 6 has moved this Court by filing the present levision application against the impugned order by which the objections filed on behalf of defendants Nos. 1, 5 and 6 to the recording of compromise have been rejected, compromise has been found to be lawful and the suit was adjourned to another date for checking up the compromise petition and submission of report by the office.
2. The facts of the case in short, are that the plaintiffs-opposite parties filed a suit for partition claiming half share in the suit property in which two sets of written statements were filed by the defendants. During the pendency of the suit, on 7th April, 1982, a compromise petition purported to bear the signatures and left thumb impression of the parties was filed. Two objection petitions were filed to the recording of the compromise, one by defendant No. 1 and the other by defendants 5 and 6. According to defendant No. 1, his signature on the compromise petition was obtained by practising fraud upon him. According to defendants Nos. 5 and 6, they neither entered into the compromise nor put their left thumb impressions on the compromise petition. Since the genuineness of the compromise was disputed, the trial Court held enquiry on this question during the course of which the parties examined witnesses in support of their respective cases and the trial Court after considering the same came to the conclusion that the compromise was genuine, rejected the objections filed to the recording of the compromise, held that the compromise was lawful and adjourned the case to another date for checking up the compromise petition by the office. Hence this revision application. Since the question raised would affect large number of cases, for an authoritative pronouncement, the learned single Judge before whom the case was placed for hearing referred the same to a Division Bench and hence the matter has been placed before us.
3. Learned counsel appearing on behalf of the plaintiffs-opposite parties took a preliminary objection to the maintainability of this revision application on the ground that the remedy of the petitioner was to prefer an appeal against the decree which may be passed in terms of the compromise. On the other hand, learned counsel appearing on behalf of the petitioner contended that no appeal is maintainable under Section 96(1) of Civil P. C. (hereinafter referred to as the Code) as, according to Section 96(3) of the Code, an appeal against a consent decree is not maintainable and the only remedy of the petitioner was to assail the impugned order by filing the present revision application. Seeing the important and ticklish question involved in the case, we requested Mr. Sukumar Sinha to assist the Court who assisted us with his usual vehemence and very ably and fairly placed both the view points clearly pointing out the distinctions therein.
4. In my view, for proper appreciation of the question referred to, it would be necessary to go into the legislative changes made in the relevant provisions. The relevant provisions for deciding the question referred to are Section 96, Order XXIII, Rules 3 and 3A, and Order XLIII of the Code. In the year 1976, by Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 1976) (hereinafter referred to as the "Amending Act") various amendments have been made in different provisions of the Code including the aforesaid provisions with effect from 1-2-1977. According to the un-amended provisions, Order XXIII, Rule 3 provided that the where it was proved to the satisfaction of the Court that the suit has been adjusted either wholly or in part by any lawful agreement, compromise or satisfaction, the Court is required to pass a decree in accordance therewith so far as the same related to the subject-matter of the suit. Before amendment, if the Court would have passed an order recording or refusing to record an agreement or compromise or satisfaction, the remedy available to the aggrieved party was to prefer an appeal, as provided under Order XLIII, Rule (1)(m) of the Code.
5. It appears that there were conflicting decisions of different High Courts in relation to the aforesaid provisions. Tendency to fabricate compromise petitions or take frivolous objections to genuine compromise was increasing as a result of which litigation used to linger for years together. Compromise petitions used to be fabricated and filed and for these reasons the legislature felt it necessary to make certain amendments in the aforesaid provisions. According to the amended provisions lawful agreement or compromise is required to be in writing and signed by parties. The subject-matter of the agreement or compromise or satisfaction between the parties to the suit can be not only the subject-matter of the suit but the other matters also. An explanation has been put in Order XXIII Rule 3 of the Code to the effect that an agreement or compromise which is void or voidable under the Contract Act, 1872 shall not be deemed to be lawful within the meaning of this rule. A proviso has been added in this rule to the effect that if genuineness of lawful agreement or compromise is disputed in that event, a duty is cast upon the Court to decide the same in the same very suit. Now by virtue of amendment, a party is debarred from challenging the genuineness or otherwise of the compromise by filing another suit and the only remedy is to challenge the same in suit in which it has been filed. By amendment, clause (m) of Order XLIII (1) providing appeal against an order recording or refusing to record an agreement, compromise or satisfaction has been deleted and Order XLIII Rule 1-A, Sub-rule (2) has been inserted which provides that 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. It appears that since an appeal was provided under Clause (m) of Order XLIII (1) of the Code against an order recording or refusing to record compromise, agreement or satisfaction and litigation used to linger by preferring appeal which remained pending for years together, and further progress of the suit was being delayed, the legislature thought it proper to curtail right of appeal against an order recording or refusing to record compromise, agreement or satisfaction at the interlocutory stage of the suit.
6 to 8. The intention of the legislature appears to be that entire matter relating to compromise should be decided in the same very suit and appeal arising therefrom and not by way of separate suit. Since compromise matter used to remain pending for decades, to shorten the litigation, the legislature thought that the entire matter should be set at rest in the same very suit and has made drastic amendments in the aforesaid provisions, as referred to above. The question, whether compromise is vitiated or not due to undue influence, fraud, coercion, misrepresentation etc. is required to be decided in the very same suit, if it is so alleged. The objection to the recording of compromise can be taken immediately after compromise petition is filed and before the same is recorded. Can it be said that a party who does not object to the recording of compromise before its recording is precluded from objecting to the same after its recording and/or passing of decree. If this interpretation is given to proviso to Order XXIII, Rule 3 of the Code, the same would defeat the very purpose of the amendment. There may be a case where compromise petition is fabricated, the same is filed before the court on a date not fixed in the suit, behind the back of the concerned party and without his knowledge, the same is recorded and decree is passed accordingly. There may be some other reason due to which a party could not have objected to the recording of compromise before it was recorded and decree passed. In my opinion, a party can be allowed to object to the recording of compromise even after compromise is recorded, but no decree has been passed or a compromise decree has been passed, by filing an application to that effect, if the Court is satisfied in relation to the grounds for not taking objection before recording of the compromise and/or passing of compromise decree. A party can, for the first time, challenge the compromise in appeal against the decree, if the circumstances so justify and the party is able to satisfy the appellate court that compromise was not lawful for any reason. The appellate Court can, where it finds that evidence is necessary, remand the matter to the trial Court after setting aside the decree and order recording compromise for considering the genuineness or otherwise of the compromise. In appropriate cases where only legality of the compromise, agreement or satisfaction is disputed which does not require any evidence, the appellate court may itself consider and dispose of the matter finally.
9. The main question which arises for consideration in this case is whether an appeal lies against a decree disposing of the suit in terms of the compromise. In this connection, I may usefully quote the provisions of subsections (1) and (3) of Section 96 and Sub-rule (2) of Order 43 Rule 1-A of the Code which read thus;
"96. Appeal from original decree--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such court.
(3) No appeal shall lie from a decree passed by the court with the consent of parties."
"Order 43 Rule 1-A Right to challenge non-appealable orders in appeal against decrees- -
(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."
10. It is well settled that appeal is creature of statute and Section 96(1) confers right of appeal upon a party from every decree passed by any court exercising original jurisdiction. The use of the words 'every decree' in Section 96(1) shows that the legislature intended to provide appeal against each and every decree. Sub-section (3)' of Section 96 is really an exception to Sub-section (1). The legislature instead of introducing a proviso in Sub-section (1) has introduced separate Sub-section, that is, Sub-section (3). The expression used in Sub-section (3) of Section 96 is that "no appeal shall lie from a decree passed by the court with the consent of the parties." In Sub-section (3) the legislature has not used the expression 'decree passed by the Court on the basis of the compromise petition; rather, the expression used is 'decree passed with consent of the parties'. By subsection (3) vested right of appeal has been curtailed in certain circumstances. Therefore, the provision taking away such a vested right has to be const rued very strictly. If the factum of compromise is disputed by a party, then it would mean that parties are disputing whether they consented to the decree or not. In that event, the decree passed on the basis of the compromise petition cannot be said to have been passed with the consent of the parties, as such, appeal would lie under Section 96(1) of the Code against the decree disposing of the suit in terms of the compromise and bar under Sub-section (3) shall not operate. In such an appeal, by virtue of the provisions of Sub-rule (2) of Order XLIII Rule 1 -A, it would be open to a party to contest the decree on the ground that compromise should or should not have been recorded. The legislature deleted clause (m) from Order XLIII Rule 1 providing right of appeal against the order recording or refusing to record compromise, agreement or satisfaction, but since the suit is also barred, it has specifically made provision in Sub-rule (2) of Order XLIII Rule 1-A by making a provision that a party can contest the decree on the ground that compromise should or should not have been recorded.
11. It appears that the legislature thought that there may be some difficulty in challenging the order recording or refusing to record compromise in appeal against decree by virtue of the provisions of Section 105 of the Code and; therefore, it has expressly made provision by inserting Sub-rule (2) in Rule 1-A of Order XLIII of the Code. Why Clause (m) has been deleted? The reason for deleting Clause (m) and inserting Sub-rule (2) in Order XLIII Rule 1-A is obviously; to shorten; the litigation aS a matter of fact, the appeal against decree which has been passed disposing of the suit in terms, of the compromise does not lie under Sub-rule (2); of Order XLIII Rule 1-A as the same is not an enabling provision. The language of the Sub-rule (2) is very clear where it has been stated that in appeal against the decree passed in a suit after recording a compromise or refusing to record a compromise, it will be open to contest the decree on the ground that compromise should or should not have been recorded. In such an eventuality, appeal has been provided under Section 96(1) itself in view of the fact that bar put by Sub-section (3) thereof will not operate and Sub-rule (2) aforesaid only makes it explicit that in that appeal, decree can be contested on the ground that compromise should or should not have been recorded.
12. The question, whether bar put by Sub-sect ion (3) of Section 96 shall operate in cases where the factum of compromise is disputed, was , subject-matter of consideration before the Supreme Court in the case of Katikara Chintamani Dora v. Gautreddi Annamanaidu, AIR 1974 SC 1069 and it was laid down as follows (at pp. 1080-81 of AIR):
!"If the compromise agreement was lawful and as we shall presently discuss it was so the decree to the extent it was a consent' decree, was not appealable because of the express bar in Section 96(3) of the Code."
"Be that as it may, the bar to an appeal against a consent decree in Sub-section (3) of Section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forgo their right of appeal by any lawful agreement or compromise or eve by conduct. Therefore, as soon as the parties made the agreement to abide by the determination in the appeal (A.S. 668) and induced the court to pass a decree in terms of that agreement,. the principle of estoppel underlying Section 96(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties."
From the aforesaid decision of the Supreme Court, it would appear that bar put by Sub-section (3) was operative in relation to cases where parties made agreement and the same was lawful. In cases where it was disputed as to whether the agreement was made or not; in other words, if according to one party the agreement was entered into whereas according to the other, the agreement was not entered into, the very factum of the agreement becomes disputed and in that event, it cannot be said that the decree was passed with consent of the parties as they agreed to suffer consent decree. It would further appear that for operating the bar, the compromise or agreement must be lawful. Therefore, from the aforesaid decision of the Supreme Court, it becomes clear that bar put by Sub-section (3) could not operate where factum of consent is disputed and/or its legality is doubted,
13. A Bench of this Court had occasion to consider this question in the case of Mathura Singh v. Deodhari Singh, AIR 1972 Patna 17 in which an appeal was preferred against the decree passed disposing of the suit in terms of the compromise. In that case, factum and legality of compromise both were disputed. One of the ground was that no permission was taken by guardian from the court for entering into compromise. This Court held that bar put by Sub-section (3) would not operate in preferring an appeal against such a decree. Their Lordships succinctly laid down the law as follows (at pp. 21 and 22 of AIR):--
"Learned counsel urged that as the decree which has been passed in this case is a consent decree, Section 96 of the Civil P. C. is a bar to the maintainability of the appeal. It is difficult for me to accept this contention. Consent decree always means a decree arrived at between the parties with the consent of all persons concerned. In the present case, defendant No. 4 never consented nor could any consent be presumed on behalf of the minor defendants in the circumstances of the case. Moreover, the decree is not a consent decree pure and simple. It is a decree passed partly on compromise, partly on consent and partly ex parte. Therefore, the decree passed in the present case is not a consent decree. In Chhaba Lal's case, AIR 1946 PC 72 referred to above, while dealing with an appeal under the provisions of Section 16 of the Arbitration Act which bars an appeal against a decree passed in terms of the award, their Lordships took the view that as the reference itself was invalid not having been legally made by the parties concerned, it was not a decree based on the award and so the appeal was maintainable.
In the present case also, as the decree was not a consent decree based on consent of all the parties concerned, the decree passed in this case could not be regarded as a consent decree. The principles of this case are fully applicable to the case of a consent decree under Section 96 of the Civil P. C. The principle of the case was applied by the Allahabad High Court in Sagwa v. Dalwa, AIR 1952 All 97 in case of a decree passed upon a compromise against a minor for which leave of the Court was not obtained under the provisions of Order 32, Rule 7 of the Civil P. C. as it could not be said to be a valid consent decree and as such, the minor can challenge it by way of appeal and Section 96 does not bar it. I respectfully agree with the view taken by the Allahabad High Court in that case. In view of the decision of the Judicial Committee, referred to above, the decision to the contrary in Smt. Golnur Bibi v. Sheikh Abdus Samad, AIR 1931 Ca1 211 could not be regarded as a good law. In Nityamoni Dasi v. Gokul Chandra Sen (1911) 9 Ind Cas 210 (Cal) the Calcutta High Court held that a person, not a party to the compromise can successfully challenge the decree as invalid in appeal. Therefore, this contention of learned counsel for the respondents is without any substance and must be overruled."
14. Learned counsel appearing on behalf of the petitioner, in support of his contention that no sooner a decree is passed disposing of the suit in terms of the compromise, the bar put by Sub-section (3) becomes operative, even if the factum or legality of the com-
promise is challenged and no appeal would lie has placed reliance upon three Division Bench decisions of this Court in the case of Sabitri Thakurain v. F. A. Savi, AIR 1929 Patna 318, Sabitri Thakurain v. F. A. Savi, AIR 1933 Patna 306 and Mohammad Idris Haidar v. Mohammad Habibur Rahman, AIR 1948 Patna 97, wherein it has been observed that appeal will not lie against a decree disposing of the suit in terms of the compromise irrespective of the fact whether-factum or legality of the compromise has been challenged or not. In my view, these decisions are distinguishable and in different circumstances, such observations have been made. Moreover, the law laid down in these cases that no appeal shall lie against the decree disposing of the suit in terms of the compromise irrespective of the fact whether factum and/ or legality of the compromise has been challenged or not, does not hold good now after decision of the apex Court in the case of Katikara Chintamani Dora (AIR 1974 SC 1069) (supra) and the aforesaid three decisions of this Court stand overruled by the aforesaid decision of the Supreme Court.
15. This question was raised before a Division Bench of Madhya Pradesh High Court in the case of Thakur Prasad v. Bhagwan Das, AIR 1985 Madh Pra 171 and a learned single Judge of Bombay High Court in the case of Deorao v. Devkinandan Bhojraj Chandak, AIR 1984 Bombay 475. In both these cases, the learned Judges have taken into consideration in great detail the provisions of Section 96(1) and (3), the factum of deletion of clause (m) from Order XLIII Rule 1 and insertion of Order XLIII Rule 1-A, Sub-rule (2) and laid down the law that where the factum or legality of compromise is challenged, an appeal would He under Section 96(1) of the Code and correctness of the order recording or refusing to record compromise can be challenged in such an appeal. I am in respectful agreement with the law laid down in these two cases.
In view of the foregoing discussions, I hold that after the coming into force of the Amending Act, an appeal would lie under Section 96(1) of the Code and second appeal would lie under S. 100 of the Code against a decree passed in terms of the compromise where factum of the compromise has been disputed and/or its legality has been doubted and the bar put by S, 96(3) of the Code shall not operate.
16. Now another question which falls for consideration of this Court is as (o whether the present revision application is maintainable or not, meaning thereby that if an order is passed rejecting/allowing objection to the recording of compromise and/or recording or refusing to record a compromise, the same is revisable or not. In this connection, 1 may usefully quote the provisions of Section 115 of the Code as amended by the Amending Act, which reads thus:
"115. Revision- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
Provided that the High Court shall not, under this section, vary or reverse any order made, or; any order deckling an issue in the course of. a suit or other proceeding, except where--
(a) the order, if it had been made in favour of the party, applying for the revision would have finally disposed of the suit or other proceeding, or
(b) the order if allowed to stand, would order, if allowed to standi would occasion a failure of justice or cause irreparable injury to the party against whom it was made;
(2) The High Court shall not under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation-- In this section, the expres sion "any case which has been decided"
includes any order made, or any order decid ing an issue in the course of a suit or other proceeding."
(Emhasis added)
17. From a bare perusal of the aforesaid provisions, it would appear that the underlined portions mentioned above in Section 115 of the Code have been inserted by the Amending Act. It has been well settled by various decisions of this Court as well as apex Court that before amendment a revision was not maintainable in cases where the order impugned was appealable as such to the High Court either directly or indirectly. If an appeal was maintainable before the court subordinate to the High Court against the impugned order, then revision was not barred. Likewise, if an appeal against the impugned order was maintainable to the lower Court and no further appeal was provided before this Court, the revision was not barred. If against the appellate court an appeal was maintainable before this Court, then against the impugned order against which an appeal lay to the court below, a revision was not maintainable. For example, if an order was passed either under Section 47 or Section 144 of the Code by trial Court and against the same an appeal was provided before the District Judge, a second appeal was provided to this Court and in that eventuality, no revision was maintainable against the order of trial Court against which an appeal lay before the District Judge. On the other hand, against the order passed in Receivership or injunction matter by the trial Court, if an appeal was maintainable before the' District Judge, a second appeal was not provided against the appellate order. Therefore, revision was competent against the order of trial Court. In this connection, reference may be made to the cases of Tipan Prasad Singh v. Secy, of State, AIR 1935 Patna 86; Maqbool Alam Khan v. Mt. Khodaija Begum, AIR 1949 Patna 133 (FB), Subh Narain Singh v. M. M. Chakravartu, AIR 1969 Patna 256 and Smt. Vidya Vati. v. Devi Das, AIR 1977 SC 397.
18. Now according to the amended provision, a revision is not maintainable against an order, if an appeal is provided therefrom either to the High Court or to any court subordinate thereto. Now by amendment, revisional jurisdiction has been ousted not only in those cases where an appeal directly or indirectly lay against an order to this Court but also against an order which is appealable to any court, subordinate to the High Court, therefore, now revisional jurisdiction has been further curtailed as laid down by this Court in the case of Jokhi Ram Mohan Lal v. Smt. Gita Devi Tulasyan, AIR 1978 Patna 2,
19. So far as the order rejecting or allowing objection to the recording of compromise or recording or refusing to record a compromise is concerned, against the same no appeal is now provided in view of deletion of clause (m) from p. XLIII Rule 1 of the Code. But by introducing provisions of Order XLIII Rule 1-A, Sub-rule (2), it has been provided that compromise decree can be attacked on the ground that compromise should or should not have been recorded, meaning thereby that correctness of the order recording or refusing to record a compromise after rejecting or allowing objection to the recording of compromise, as the case may be, can be examined by appellate court in appeal against the decree. The provision of Order XLIII Rule 1-A is somewhat similar to Section 105 of the Code which lays down that where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. This shows that by virtue of the provisions of Section 105 of the Code, correctness of interlocutory order can be challenged in appeal taken from decree, if the interlocutory order goes to affect merit of the suit and not otherwise. If it is held that by virtue of the provisions of Order' XLIII, Rule 1-A, Sub-rule (2) in appeal against decree disposing of the suit in terms of the compromise, the only ground of attack to the decree will be that the court has erroneously recorded the compromise, as such, the appeal should be treated to be against an order recording or refusing to record a compromise, then the same would mean that even with regard to those interlocutory orders, which are covered by the provisions of Section 105 of the Code, no revision would lie as correctness of that order can be challenged in appeal. In my view, by inserting Order XLIII, Rule 1-A, Sub-rule (2), the intention of legislature could not have been to take away revisional jurisdiction of this Court. The legislature only wanted to curtail right of appeal against the order recording or refusing to record a compromise so that correctness of the order may be challenged in appeal against the decree and the proceeding may not be delayed by taking the matter to the appellate court against such an order. Therefore, I hold that in certain circumstances only, revision is maintainable against such an order and not otherwise.
20. It appears that prior to the amendment, by decisions of the Supreme Court and different High Courts, it has been laid down that High Court may not exercise revisional powers even if a case comes under any of the three clauses of Section 115 of the Code and it is satisfied that the impugned order, if allowed to stand, would not occasion failure of justice. Reference in this connection be made to the case of Brij Gopal Mathur v. Kishan Gopal Mathur, AIR 1973 SC 1096 and Full Bench decision of this Court in Ram Golam Sahu v. Chintaman Singh, AIR 1926 Patna218. Now by amendment, this has not been only made explicit but imperative also. After amendment, the Court exercising powers of revision has first to satisfy itself as to whether the impugned order comes within any of the three clauses of first part of Section 115 of the Code and, secondly, if the case falls under any of the two clauses of the proviso to Section 115(1), under clause (a) to the proviso revisional court shall not interfere with an order unless it comes to the conclusion that nature of order impugned is such that it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceeding as the case may be. Likewise clause (b) to the proviso envisages that High Court would not interfere with the order impugned in case it finds that if the same is allowed to stand, there would be neither failure of justice nor irreparable injury to the party against whom it was made. There is a legislative command to the revisional court not to with the impugned order, unless the case comes under any of the two clauses of the proviso though the same is covered by any of the three clauses of Section 115(1), namely, (a), (b) and (c).
21. There may be two types of orders in this regard, one may be allowing the objections to the recording of compromise and refusing to record compromise. The other may be rejecting the objections to the recording of compromise and recording a compromise. If in passing the aforesaid two types of orders, a Court commits any error of jurisdiction within the meaning of any of the three clauses of first part of Sub-section (1) of Section 115, the revisional court shall not inteiere with the order impugned unless the case is covered by any of the two clauses of the proviso. The language of first part of subsection (1) of Section 115 of the Code is different than the language of the proviso and subsection (2) of Section 115 of the Code. According to first part of Sub-section (1), if the impugned order comes within any of the three clauses, enumerated therein, the High Court may interfere with the impugned order, but according to proviso to Sub-section (1) or the provisions of Sub-section (2), revision will not be maintainable because there is legislative command to the High Court not to interfere with the impugned order in exercise of the revisional jurisdiction unless the case comes within the purview of any of the aforesaid provisions. In cases where court passes an order refusing to record compromise after allowing objections to its recording, a revision would be maintainable and the revisional Court would be justified in interfering with the same as if the order is allowed to stand, the same would occasion failure of justice and cause irreparable injury to the party against whom it was made in view of the fact that the party shall have to unnecessarily go to trial, and in that event, the issues in the suit shall be required to be tried on merit and trial may take years together. The same may cause unnecessary harassment and expenditure to the parties. There would be unnecessary wastage of court's time as well. In such an eventuality, it can be said that if such an order is allowed to stand, there will be not only failure of justice but irreparable injury also to the party against whom the order is made. Such a case will not be covered by clause (b) alone to the proviso but clause (a) as welt to the proviso as if the court below would have passed an order in favour of the party applying for revision by recording a compromise, the same would have disposed of the suit. Therefore, I hold that a revision is maintain- able against an order refusing to record a compromise and if the revisional court comes to the conclusion that the case comes under any of the three clauses, referred to in first part of Section 115(1), it can interfere with such an order.
22. Another type of order, where objections to the recording of compromise have been recorded can be classified in two classes. One class of cases may 'be where petition for compromise of the suit partially has been filed and an order has been passed recording the same after rejecting the objections to its recording. The order may be in which compromise petition has been filed for disposing of the whole suit in terms of the compromise and after rejecting objections to its recording the same has been recorded.
In the first class of case the suit is not disposed of by partial recording of compromise, but the same remains pending. With regard to those persons who do not enter into compromise and those suit properties in relation to which the parties are not able to settle up their disputes, the suit has to be disposed of after trial on merit. It is well settled that partial compromise can be recorded in certain circumstances only and not in each and every case. In the case of recording of partial compromise, a parly objecting to the same has to wait till the disposal of suit on merit and passing of decree and only thereafter he can challenge the same in appeal against decree if it is held that revision is not maintainable. If in appeal against decree the same is set aside on the ground that the order recording partial compromise is bad, then the suit will have to be remanded for trial of those matters which were subject-matter of partial compromise. This would cause irreparable injury to the party and there would be failure of justice as the same would be causing unnecessary harassment to the parties and wastage of Court's time. This class of cases will be covered by clause (b) to the proviso and not clause (a) as if the order had been made in favour of the party applying for revision, the same would not have finally disposed of the suit. Therefore, I hold that revision is maintainable against an order recording partial compromise of suit and if the case comes under any of the three clauses of first part of Section 115, revisional court can interfere.
23. In another class of cases where compromise has been recorded for disposal of the suit in its entirety after rejecting objections to its recording, in my view, no revision would be maintainable even if the case is covered by any of the three clauses of first part of Section 115(1) as the same would not come under any of the two clauses of the proviso. The case cannot be brought within the net of clause (a) to the proviso as if the order impugned had been made in favour of the party applying for revision, the same would not have finally disposed of the suit. This class of cases will not be covered by clause (b) to the proviso in view of the fact that the party concerned will not suffer in any way, as immediately after recording compromise a decree will be passed against which the matter can be taken before appellate court in appeal in which correctness of such an order can be challenged without any delay. Neither there will be wastage of court's time nor the party concerned will be harassed and will have to incur unnecessary expenditure. Therefore, I come to the conclusion that if such an order is allowed to stand, there would be neither any failure of justice nor the same would cause irreparable injury to the concerned party and, consequently, it is held that revision against such an order would not lie. In view of the foregoing discussions, 1 hold that this revision application is not maintainable as the impguned order falls within this category of cases.
24. Alternatively, we have heard the parties on the merit of the impugned order also. Different portions of the impugned order have been placed before us but nothing could be pointed out to show that the court below while passing the impugned order has exercised jurisdiction not vested in it by law or failed to exercise jurisdiction so vested in it or acted in exercise of jurisdiction illegally or with material irregularity. Accordingly, I do not find any point on merit as well because the impugned order does not come within any of the three clauses of first part of Section 115(1) of the Code. The powers of the appellate Court, however, are entirely different. The petitioner may agitate correctness of the impugned order in appeal taken against-decree and it is so done, the appellate Court shall consider the point raised in appeal on its own merit without being prejudiced by any observations in this order.
25. In the result, this revision application is dismissed as not maintainable. But in the circumstances of the case, I direct that parties shall bear their own costs. Before, parting with this judgment, I may observe that if the petitioner prefers an appeal against the decree which might have been passed or may be passed henceforth challenging the correctness of the order, rejecting objection to the record ing of compromise and order recording the compromise and files an application under Ss. 5 and 14 of the Limitation Act along with memo of appeal, the appellate Court shall pass appropriate orders thereupon in accord ance with law as in my view the petitioner was bona fide prosecuting the present revision application before this Court.
Nagendra Rai, J.
26. I agree.