- (1.) THE facts giving rise to this appeal are as follows:- The defendant-appellant executed an agreement dated 4-8-1960 in favour of the plaintiff-respondent to sell a house, some trees, a bamboo clump and eight agricultu ral plots for an amount of Rs. 2000/-. Before the sale deed could be executed the village where the agricultural plots were situated came under consolidation operation. In consolidation proceedings the valuation of the plots of defendant- appellants was prepared and according to that valuation he was allotted three differ ent chaks of the same valuation. One of the chaks which the defendant-appellant got was 2 bigha 3 biswas and 11 dhoors in area and it also included one of the plots about which the agreement for sale had been executed. The plaintiff-respon dent then filed a suit for specific perform ance of the contract.
(2.) THE defendant contested the suit and, inter alia, pleaded that the con tract for sale regarding the agricultural plots was not capable of being performed and therefore the plaintiffs suit tor speci fic performance of the contract regarding the agricultural plots was liable to be dis missed. The trial Court decreed the plaintiff's suit regarding the other properties and chak No. 1 consisting of plot No. 135 for a consideration of Rs. 1450/-. The suit for the specific performance of the contract regarding the other agricultural plot was dismissed. Being dissatisfied, both the par ties filed appeals. The lower appellate Court dismissed the appeal filed by the defendant-appellant, and by allowing the appeal filed by the plaintiff-respondent de creed that suit in its entirety holding that after the plaintiff had taken special oath, the trial Court ought to have decreed the entire suit and the matter as to whether the decree was executable or not was to be considered during the execution pro ceedings. Being dissatisfied the defendant has filed this appeal.
(3.) A preliminary objection was raised in this appeal that the decree being passed on basis of the consent of the par lies it was not appealable, as provided under Section 96 (3), C.P.C. It has, therefore, to be seen as to whe ther the decree passed in this case was a consent decree, as provided under Section 96 (3) of the Civil Procedure Code. The defendant gave a statement that in case the plaintiff took a special oath of Ganga-jali that he was present in the office of the Sub-Registrar on 3-8-1965 then the suit should be decreed. This offer was accept ed by the plaintiff, and the plaintiff stated on oath of Gangajali about the above fact Thus, there was an offer by the defendant which was accepted by the plaintiff. This amounted to a contract and on the basis of this contract, which was based on con sent, the parties were agreed that a decree should be passed. Order XXIII, Rule 3, C.P.C. lays down as to what is a consent decree. According to this rule if 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 the defendant has satisfied the plaintiff in respect of the whole or any part of the claim, the Court shall pass a decree in terms of such agreement or the compro mise. In the instant case, there was a consent decree which has been passed on a compromise based on an agreement of fered by one party and accepted by the other party. It has, therefore, to be seen as to whether the agreement was a legal one. I dp not think that there was any illegality in the acceptance of the offer and, therefore, the trial Court had to pass a decree in terms of the special oath taken by the plaintiff. As the plaintiff had taken special oath, as desired by the defendant, the plaintiff's suit had to be decreed in toto.;