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4. After the amendment of the Code by Amending Act No. 104 of 1976, Order 23, Rule 3 provides that where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement in writing and signed by the parties in respect of the whole or any part of the subject matter of the suit, the court shall record such agreement or compromise 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 is the same as the subject matter of the suit. Under the explanation 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. Therefore, under the amended provision, it has to be proved to the satisfaction of the court that there is a lawful compromise, i.e. it is neither void nor voidable, Consequently, the court can embark upon an enquiry, whether or not the compromise is vitiated due to undue influence, fraud or misrepresentation. Now Rule 3-A has been added to Order 23, which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Therefore, now a suit cannot be filed to challenge a compromise even if it was not lawful. Order 43, Rule l(m) has now been deleted but Rule 1-A has been added to Order 43. Under Sub-rule (1) right has been given to a party to challenge non-appealable orders in appeal against the decree and under Sub-rule (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. However, section 96(3) remains as it was, i.e. no appeal shall lie from a decree passed by the court with the consent of ihe parties. Now the question remains what remedy will be open to a party against a compromise decree. There can be no doubt that an appeal will lie in spite of Section 96(3) if the compromise decree is a nullity under the provisions of any law or is ultra vires of some Act or is without jurisdiction. Now the question is whether an appeal could be entertained if the consent decree is voidable, i.e. vitiated by undue influence, fraud or misrepresentation. According to us. an appeal can lie in spite of Section 96(3) even if the compromise decree is challenged on the ground that it is voidable. Otherwise provisions of Order 43. Rule 1-A will become otiose and meaningless. Mulla on Code of Civil Procedure. 14th Edition, commenfing on Section 96(3) has opined that the distinction made between the two clauses of cases, namely, those where the factum of compromise is in dispute and those in which its legality is in question cannot be sustained in principle and such a distinction is not tenable in view of the deletion of Clause (m) of Rule 1 of Order 43 by Ihe Amendment Act. 1976 and which renders the decisions cited in footnote inapplicable. Sarkar on Civil Procedure Code, 6th Edition, while commenting on Order 43, Rule 1-A has opined that Sub-rule (2) makes an express provision consequent upon abolition of right of appeal against an order under Order 23, Rule 3 recording or refusing to record an agreement or compromise permitting a party, in an appeal against the decree passed in a suit, to contest the decree on the ground that the compromise should or should not have been recorded. As to the decree which is passed by a court refusing to record a compromise, although a party alleged such a compromise and asked for recording the same, in the appeal against the decree passed, the correctness of the order refusing to record the compromise can very well be challenged under Section 105 and also under Sub-rule (2). Similarly if the compromise is not lawful and should not have been recorded and the decree is passed an appeal is maintainable and not barred under Section 96(3).

5. I find support to our view from a single bench decision of the Bombay High Court in Anant v. Achut, AIR 1981 Bom 357 that Order 23, Rule 3-A bars the remedy of a second suit on the cause of action that the compromise which resulted in the passing of the decree was not lawful. However, an appeal lies under Rule 1-A of Order 43. The intention of the legislature being to do away with multiplicity of proceedings. Rule l(m) of Order 43 has also been omitted because the aggrieved party can take the point that the compromise ought or ought not to have been recorded in an appeal against the decree under the added Rule 1-A. According to us an appeal lies under Section 96 read with Order 43. Rule 1-A. However, a contrary view has been taken by a Division Bench of the Andhra Pradesh High Court in G. Peddireddi v. G. Tirupathy Reddy, AIR 1981 Andh Pra 362 that an order rejecting to record a compromise is not appealable under Section 96. though for different reasons by two Judges. As per Seetharama Reddy, J.. the order does not amount to a decree and so no apeal lies under Section 96, while, according to Raghuvir, J., though the order is a decree but no appeal lies because Rule Km) of Order 43. under which an appeal was provided, has been deleted by the Amendment Act of 1976. The Andhra Pradesh High Court overruled the provision of Order 43. Rule 1-A, though mentioned allout the recommedations of the Law Commission adding of rule to Order 43 to the effect that an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it is open to 1 he appellant to contest the decree. Therefore, Section 96(3) bars an appeal against a compromise decree if it is lawful. Under the circumstances, the minority view of this court in Renuka v. Onkar AIR 1918 Nag 129 (supra) and that of the Sind Judicial Commissioner's Court in Mt. Ummakulsum v. Ghulam Rasul AIR 1929 Sind 32 (supra) is now good law and not the majority view of other High Courts. Consequently, an appeal lies under Section 96 against a compromise decree which is not lawful, i.e. either void or voidable, and the bar under Section 96(3) is only against lawful compromise decrees.