Srivastava, J. - (1.) This second appeal has been referred to us by Mr. Justice Brijlal Gupta as in the opinion of the learned Judge it raised a question of importance which deserved consideration by a Division Bench.
(2.) The facts leading up to the appeal are not mucn in dispute. Five plaintiffs, Chunni Lal, Mitho Lal, Ulfat Rai, Basant and Ajudhya Prasad, filed the suit out of which this appeal has arisen against four defendants, Smt. Prem wati, Sia Ram, Babu Ram and Ram Dulare. The relief claimed was possession over the properties mentioned in the plaint by the cancellation of a deed of compromise dated the 23rd May 1947 filed in a mutation case No. 252 Jai Lal v. Jagannath in respect of village Merapur, pargana Shamshabad East, tahsil Sadar, district Farrukhabad. Issues were framed in the suit on the 3rd February 1948 and the 21st May 1948 was fixed as the first date for final hearing. On that date two of the plaintiffs, viz. plaintiffs Nos. 1 and 2, and all the four defendants appeared and filed a compromise. The remaining three plaintiffs were not present. The compromise was verified by the persons who were parties to it and the order which the Court passed was: "The suit is decreed in terms of the compromise between the plaintiffs Nos. 1 and 2 and the defendants. The claim of the plaintiffs Nos. 3 to 5 is dismissed. The compromise shall be incorporated."
(3.) Ulfat Rai, one of the plaintiffs who had not participated in the compromise, then filed an appeal against the decree. The appeal was filed on the 24th August 1948. As it was prima facie beyond time an application was made for the condonation of the delay under Section 5 of the Limitation Act and the delay was condoned. When the appeal came up for hearing before the learned Additional Civil Judge of Farrukhabad a plea was raised on behalf of the respondents that the appeal was' not maintainable. The contention was that the suit of the appellant had really been dismissed for default and his only remedy lay in applying for restoration. As the order dismissing the suit for default did not amount to a decree no appeal could be filed against it. This contention found favour with the learned Additional Civil Judge and he dismissed the appeal as not maintainable. Against that order Ulfat Rai filed tile present second appeal in this Court and the question which was raised for consideration was "Whether the dismissal of the suit by the trial Court was really a dismissal for default and thus not appealable or whether it was a dismissal on merits and appealable on that account?" The appellant contended that the dismissal was on merits and the appeal should, therefore, have been entertained by the learned Additional Civil Judge. The respondents on the other hand maintained that the dismissal was for default and the only remedy of the appellant was to apply for restoration and he could not file an appeal. Two cases were cited before Mr. Justice Brijlal Gupta. They were Kulendra Kishore Roy v. Rai Kishori Shalia, AIR 1921 Cal 176 and Jugeshar Rai v. Railal Bahadur, AIR 1918 Pat 376 but the learned Judge thought that they were not very relevant. He felt that there was no authoritative decision on the point which was of some importance and, therefore, referred the appeal to a Division Bench.;