1958 (7) TMI 48

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....5 has been filed by the same judgment-debtor against the same order by way of precaution. Both of them have been heard together and this judgment will govern them both. 2. The events leading to the presentation of the appeal and the civil revision application, stated shortly, are these. One Lachmi Narain Ojha obtained a decree for mesne profits in Title Partition Suit No. 218 of 1912 against some of the defendants first party of that suit including the appellant and his uncle Ramashray Pd. Chaudhary. A Pleader Commissioner was appointed for determination of the mesne profits, and ultimately a decree was passed for a sum of Rs. 38320 against the appellant and his uncle. The decree for mesne profits, however, was in the year, 1944, purchase....

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....e compromise was filed and got recorded by the judgment-debtors fraudulently and in collusion with the above named Rambilas Singh. They then made an application on the 5th of October, 1953, under Section 151 of the Code of Civil Procedure for setting aside the order recording the above compromise and for restoring the case to the original file, and Miscellaneous Case No. 104 of 1953 was started on that application. The appellant Bindeshwari Pd. Choudhary contested the case and objected to the setting aside of the order recording the compromise. His uncle Ramashray Pd. Chaudhary also filed an application supporting the compromise but he did not make any further contest. The case of the appellant was that the decree for mesne profits was pur....

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....peal lay against such an order. On behalf of the appellant, however, it has been contended that an order setting aside the order recording the compromise and restoring the proceeding to its original file substantially amounted to an order refusing to record the compromise and an appeal lay under Order 43, Rule 1 (m) of the Code of Civil Procedure. In support of this contention reliance has been placed on a decision of this Court in Sheosagar Singh v. Sitaram Kumhar, AIR 1952 Pat 48 (A). It is not disputed in this case that the order under appeal was passed by the court under its inherent jurisdiction under Section 151 of the Code of Civil Procedure. The very case on which reliance has been placed on behalf of the appellant has laid down th....

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....nce. Order 43, Rule 1 (m) provides that an appeal shall lie from an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. Order 23, Rule 3 states 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 or compromise, 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 suit. Reading the above two provisions together, it appears to me that an appeal lies against an order recording or refusing to recor....