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Showing contexts for: contested decree in Gopu Peddireddi vs Gopu Tirupathy Reddy on 3 July, 1981Matching Fragments
"1-D. (1) In an appeal against the decree in a suit passed after recording a compromise, it shall be open to the appellant to contest the decree on the ground that a compromise ought not to have been recorded in the suit.
(2) In an appeal against the decree passed in suit in which the Court has refused to record a compromise, it shall be open to the appellant to contest the decree on the ground that a compromise ought to have been recorded."
28. Order XLIII, Rule 1, deals essentially with orders against which provision for appeal has been made, as it is clear from the provisions enacted in Rule 1; it reads, "An appeal shall lie from the following orders under the provisions of Section 104, namely:--
29. The argument of the learned counsel for the appellant is that merely because Clause (m) has been deleted the impugned order does not cease to be a decree if it is capable of being construed as such, particularly so in the absence of the Parliament enacting Rule 1-D as recommended by the Law Commission. The argument, though attractive, is, in our judgment, devoid of merit and substance in view of our categorical adjudication that the impugned order does not amount to a decree within the meaning of Section 2 (2). It is obvious from the Law Commission's recommendation for deletion of Clause (m) that no appeal should lie against an order recording or refusing to record a compromise, in order to avoid successive appeals concerning the same suit. The Law Commission ex abundanti cautela recommended though for adding Rule 1-D to Order XLIII to the effect that in appeal against the decree in a suit passed either after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree. But, in the absence of such amendment, it cannot, by any stretch of imagination, be held that such orders could be construed as decrees. What was explicitly sought to be taken away by the deletion of Clause (m), cannot be brought in by implication. In our judgment, therefore, the appeal from the impugned order is incompetent.