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Mahendra Chunilal Mehta And Anr. vs Rajendra Chunilal Mehta And Anr. on 22 April, 2003 cites

Umiashankar Naranji Pandia vs Shivshankar Prabhashankar Bhatt on 12 August, 1943

6. Having considered the rival submissions, I have no manner of doubt that the applicants have merely challenged that part of the order passed by the learned Single Judge on 4.3.2002 whereby the learned Single Judge has taken on record the consent terms on behalf of the plaintiff and defendant Nos. 4 and 5 whereas the later part of that order proceeds to decree the suit in terms of the consent terms against defendant Nos. 4 and 5 without prejudice to the rights of the other defendants. To my mind, such an appeal would be available to the applicants in terms of Clause 15 of the Letters Patent Appeal. In that case, the applicants are justified in contending that they would be liable to pay court fees as provided under Article 13 of Schedule II of the Bombay Court Fees Act, 1959. The learned Counsel for the applicants has rightly placed reliance on the decision of the Division Bench of this Court reported in XLVI (1943) Bombay Law Reporter 424 in the case of Umiashankar Naranji Pandia versus Shivshankar Praphashankar Bhatt. In this decision it has been held that the Appeal against Order recording compromise is available. No doubt this decision proceeds on the basis of legal position as it obtained then by virtue of provisions contained in Order XLIII Rule 1 (m). However, deletion of Clause (m) of Rule 1 of Order XLIII C.P.C., would make no difference to the legal position that the order taking on record consent terms filed by the parties could be challenged if permissible in law. Clause 15 of the Letter's Patent Appeal in no way would preclude the applicants from filling Appeal challenging such an order and the Appeal having been filed by the applicant under that provision would therefore be available. A priori the applicant would be liable to pay court fees in terms of Article 13 of Schedule II of the Bombay Court Fees Act, 1959.
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