Modi, J. - (1.) THIS is an application in revision by the defendant Misrimal against an order of remand passed by the District Judge, Balotra, dated 13th January, 1954 in a suit for partition.
(2.) THE material facts are these. THE plaintiff Hazarimal filed a suit for partition of a house claiming half share thereof, in the court of the Hakim Jaswantpura on 8th January, 1942. THE cause was thereafter transferred to the court of Munsif, Bhinmal, who passed a preliminary decree on the 13th January, 1950. THE defendant went in appeal from that decree right up to this Court but was unsuccessful. Meanwhile the Munsif had appointed Commissioner for effecting the partition by metes and bounds on 21st March, 1950, but nothing material was done. On 31st October, 1952, the parties referred their dispute to the arbitration of some four persons and even then no progress was made until on 27th July, 1953, both parties presented a compromise in court and prayed for a decree in terms of the compromise. On the 28th July, 1953, the trial court accordingly passed a decree in terms of the compromise, but the matter was not allowed to rest there. THE defendant again went in appeal to the District Judge on various grounds; the most important of which was that the trial court had fallen into error in passing a decree in terms of the compromise even though it contained matter which was extraneous to the suit. THE plaintiff followed by filing a cross-objection. THE learned District Judg3 by his order which is now sought to be challenged allowed both the appeal and the cross-objection, set aside the compromise decree passed by the trial court and sent the case back to it for being deal with according to law. Hence this revision. I may state at the very outset that the learned District Judge on going into the matter in a manner which can be characterised as only perfunctory came to the conclusion that the compromise was illegal and void Ab initio and on that view he set aside the compromise and sent the case to the trial court apparently for its trial on merits. The learned Judge has given no reasons whatsoever how this compromise was illegal and void Ab Initio and no reasons have been disclosed before me during the course of the arguments in this Court by learned counsel which would support that view. It follows, therefore, that the order of the learned District Judge cannot be maintained. That being the substantial position of the case, as I have been able to understand if, a number of objections were raised before me with which it is necessary to deal before concluding this judgment. In the first place, it was argued on behalf of the defendant that the learned District Judge had no jurisdiction to hear the appeal against the decree of the trial court as such an appeal was barred under the provisions of sec. 96 (3) C. P. C. It is curious that this ground falls to be raised at the instance of a party who had himself prayed for setting. aside the decree passed in terms of the compromise. Be that as it may, it is necessary in this connection to consider sec. 96 (3) along with O. XXIII, r. 3 and O. XLIII, r. 1 (m) of the Code of Civil Procedure. But before I proceed to quote the relevant provisions. I may as well state here that a good deal of difficulty has been caused in this case because the trial court failed strictly to comply with the provisions of O. XXIII, r. 3 inasmuch as it did not draw up a proceeding recording the compromise. The proper course for that court was to have seen whether the matter was adjusted wholly or in part by lawful agreement or compromise between the parties in respect of the whole or any part of the subject matter of the suit, and in the event of an affirmative conclusion on that point to order that such agreement or compromise be recorded and then to proceed to pass a decree in accordance with it in so far as it related to the suit. Unfortunately the trial court did nothing of the kind and merely relied on the word of the parties, who have now gone back on it, and proceeded to pass a decree. The matter assumes considerable importance because although under sec, 96 (3) no appeal lies from a decree passed by a court with the consent of the parties, O. XLIII, r. l (m)allows an appeal from an order recording or refusing to record an agreement or compromise. In cases therefore, where a proper order under the terms of O. XXIII, r. 3 is not passed, a serious question arises whether the decree following is open to appeal or not. Sec. 96 (3), O. XLIII, r. 3 and O. XLIII, r. 1 (m) read as follows: - "96 (3) No appeal shall lie from a decree passed by the court with the consent of parties. " "o. XXIII r. 3. 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. " "o. XLIII, r. 1 (m ). An appeal shall lie from the fallowing order under the provisions of sec. 104 namely. an order under rule 3 of O. XXIII refusing to record an agreement, compromise or satisfaction. It has been strenuously contended before me on behalf of the defendant that the decree of the |trial court was not open to appeal at all. The argument was that no order recording the compromise was passed in the present case and that what was passed was a decree which under the terms of sec. 96 3) was not appealable as it had been passed with the consent of the parties. It was further urged that the omission to pass an order recording a compromise or not was a mere formality and would not have the effect or invalidating the decree passed by by the court. Reliance was placed in support of the above argument on Hassomal vs. Sahibo (l), Onkar Bhagwan vs. Gamma. Lakhji & Co. (2), Shah Jahwan Begam vs. Ghulam Rabani (3) and Umiashankar vs. Shiv-shankar (4), On the other hand, it is equally strenuously contended on behalf of the plaintiff that the court had failed to observe the procedure laid down in O. XXIII, r. 3 because it had omitted to pass an order recording the compromise and that such failure was not merely an irregularity which could be overlooked but was an illegality the effect of which was seriously to affect the rights of the parties. I was referred in support of this view to Paban Sardar vs. Bhupendra Nath (5), Mt. Ummakulsum vs. Ghulam Rasul (6),kusum Kumari vs. Biseswar Lal (7), Ramanarayana Rao vs. Ramkrishna Rao (8) and Mohd. Idris vs. Mohd. Habibur Rahman (9 ). Having given my careful and anxious consideration to this matter, I am of opinion that the better view would be to hold that the requirements of O. XXIII, r. 3 are substantial and mandatory and that the duty of seeing whether the provisions of that rule have been complied with or not rests upon the court and that, therefore, it is the duty of the court to see whether the suit has been adjusted wholly or partly between the parties by lawful argeement,and if so, the court should proceed to record a proceeding ordering such compromise or agreement to be recorded and it is only therefore that it should further proceed to pass a decree in accordance with it. Then there is a further duty cast upon the court and that is to see that it passes a decree only in so far as it relates to the suit. The consideration which has impelled me to take this view is mainly that if this is not done and a court proceeds to pass a decree immediately on a compromise having been presented to it the parties are bound in most cases to be deprived of their right of appeal altogether, the reason being that the decree that has been passed is not appealable under sec. 96 (3) and there is no possibility of filing any appeal under O. XLIII, r,1 (m) as no proceeding recording the compromise was at all drawn by the court. The intention of the legislature in my humble judgment could not have been, in such cases, to deprive the party altogether of his right of appeal and, therefore, as I have stated above the better view appears to me to be that the provisions of O. XXIII, r. 3 must be regarded as of a substantial and mandatory character and a right of appeal must be allowed in cases where a breach thereof has occurred notwithstanding that an appeal from the decree itself may to be permissible under the provisions of sec. 96 (3) C. P. C. Reference may be made to Paban Sardar vs. Bhupendra Nath (5) which appears to me to be a case practically on all fours with the present one. There no proceeding recording the compromise was made and yet a decree was passed. It was held that as no order recording the compromise was made, no decree should have passed under O. XXIII, r. 3. In other words, there was no duly passed decree within the meaning of sec. 96 (3) of the Code of Civil Procedure, and that being the true position, the bar enacted by that section did not come into play at all. Similarly, in Kusum Kumari vs. Biseswarlal (7) it was held that - "a consent decree under O. 23 r. 3 can be passed only after there has been an order that the compromise be recorded. Failure to record a compromise is not a mere matter of form as the aggrieved party has a right of appeal against this order, there being no appeal against a decree passed on compromise. " The result of the above discussion is that the provision requiring the court to order that the compromise be recorded is not a mere matter of form but a matter of substance and that the omission to comply with the requirements of O. XXIII r. 3 goes to the very root of the jurisdiction of the court to pass a decree in accordance with the compromise, and where this is not done, the true position appears to be that there is no decree within the meaning of sec. 96 (3) against which the bar of appeal may operate. I, therefore, hold that the decree of the trial court in the present case was open to appeal. The next question that falls to be determined is whether the lower appellate court was justified in setting aside that compromise as void and unlawful. I have already stated above that there is nothing on this record to show that the compromise was, in any way, unlawful or void ab initio. Both parties have, however, attacked the decree of the trial court on one common ground, viz. , that it incorporates therein matter which is extraneous to the suit and does no relate to it. In this state of affairs, I do not see that there is any other course open to me than to come to the conclusion that the decree passed by the trial court and the order of the lower appellate court must be set aside and the trial court directed to pass a proper order after carefully complying with the provisions of O. XXIII, r. 3 C. P. C. after notice to the parties, and then take further proceedings according to law. In the circumstances of the case I would leave both parties to bear their own costs in this Court and the court below. In case that court comes to the conclusion that the compromise dated 27th July 1953, contains matter which is really extraneous to the suit and does not pertain to it then it will be its duty to record the whole compromise but confine the decree only to the portion such as may relate to the suit. . ;