- (1.) It is alleged that the petitioners as plaintiff instituted a suit being Original Suit No. 460 of 1992 in the Court of Additional Chief City Magistrate, Vth Court, Kanpur Dehat, against opposite parties Nos. 3, 4, 5 and 6 as defendants, for specific performance of contract for sale executed by the opposite party No. 3 (defendant No. 1) in favour of the petitioners Nos. 1 and 2. It is alleged that the defendant No. 1 had executed sale-deed in respect of the selfsame property in favour of the opposite parties Nos. 2, 4, 5 and 6 respectively.
(2.) Sri K. K. Nirkhi, learned Counsel for the petitioners submit that a compromise was arrived at between the petitioners and respondent No. 3 and accordingly application for compromise was filed before the trial Court. The learned trial Court by an order dated 16-3-1994 had rejected the said application for compromise. Against the said order the petitioners have preferred revision being Civil Revision No. 74 of 1994. By an order dated 27-2-1998 passed by Vth Additional District Judge, Kanpur Nagar, the said revision was dismissed. Learned Counsel for the petitioners contends that he has challenged only this order dated 27-2-1998 without challenging the order dated 16-3-1994.
(3.) He contends that against the order refusing to record compromise an appeal lies. But Order 43, Rule 1 of the Code of Civil Procedure does not provide any such provision making an order under Order 23, Rule 3 of the Code, appealable. When such provision was pointed out to the learned Counsel for the petitioner he contends that it was not application for compromise but was an application for withdrawal of suit under Order 23, Rule 1 of the Code. He contends that since the defendant No. 1 had agreed to sell the suit property in favour of the petitioners outside the Court, therefore, he wanted to withdraw the suit by means of such application, which was dismissed. According to him this order under Order 23, Rule 1 of the Code is appealable. Then again Order 43, Rule 1 of the Code does not provide that an order under Order 23, Rule 1 of the Code is appealable.;