Sudhir Narain, J. - (1.) The core question in this writ petition is as to whether the appeal is maintainable against a decree purporting to have been passed on the compromise as alleged by one of the parties to the suit under Order XLIII. Rule 1A of the Code of Civil Procedure (in short C.P.C.) in spite of prohibition contained under Section 96 (3), C.P.C. that no appeal shall lie from a decree passed by the Court with the consent of the parties.
(2.) Briefly stated, the facts are, that Vishwa Nath, father of respondent No. 2, filed Civil Suit No. 166 of 1979 in the Court of Second Additional Munsff, Azamgarh for injunction and demolition against the defendant-petitioners and their father Ujagir on the allegation that the defendants had encroached upon the land of the plaintiff and started illegal constructions. The defendants contested the suit and denied that the plaintiff had any right and title over the land in question. During the pendency of the proceedings in the suit, a compromise was filed. The petitioners moved an application for recording the compromise. The plaintiff filed objection denying that he had accepted the compromise. His thumb impression was taken on blank papers and it was outcome of fraud. The statement of Vishwa Nath father of the plaintiff and Mani Ram were recorded by the Court. On consideration of the evidence, the trial court accepted the compromise and passed a decree in terms of the compromise on 18.12.1985. The plaintiff filed appeal No. 591 of 1985. The appellate court allowed the appeal and remanded the case by the impugned order dated 28.11.1998.
(3.) Learned counsel for the petitioner has not assailed the findings recorded by the appellate court but has urged that the appeal was not maintainable as sub-section (3) of Section 96 provides that no appeal shall He from a decree passed by the Court with the consent of the parties and there is no other provision under which an appeal is maintainable against such a decree.;