N.G.SHELAT - (1.)This appeal arises out of an order passed on 8th August 1960 by Mr. M. D. Manek District Judge at Amreli in Civil Appeal No. 70 of 1959 whereby the order passed by the Civil Judge (J. D.) Kodinar in Darkhast No. 40 of 1957 came to be set aside and the case sent back to the trial Court for disposal according to law with a direction that the trial Court should proceed to decide the question as directed in the decision of the District Court in the prior Civil Appeal No. 28 of 1957 of which a certified copy is at Ex. 91 in the proceeding and directing the parties to bear their own costs in the appeal.
(2.)A preliminary point came to be raised by Mr. I. R. Patel the learned advocate for the respondent saying that the appeal is not competent inasmuch as the decree passed by the first appellate Court is based on the consent of parties in view of sec. 96(3) read with sec. 108 of the Civil Procedure Code. It is unnecessary to set out the facts leading to this appeal for the reason that in my view this appeal is not competent. Part VII of the Civil Procedure Code relates to appeals. Sec. 96 of that Part relates to appeals from original decrees. Clause (3) thereof then says that no appeal shall lie from a decree passed by the Court with the consent of parties. In the same Part VII of the Civil Procedure Code we find sec. 108 and as provided therein the provisions of this Part relating to appeals from original decrees shall so far as may be apply to appeals-
(a) from appellate decrees and (b) from orders made under this Code or under any special or local law in which a different procedure is not provided
It would follow therefrom that the provisions contained in sec. 96 would govern the appeals from appellate decrees and also from orders made under this Code. That being so no second appeal would lie from a decree passed by the appellate Court if that has been passed with the consent of parties. In the case of Baoridan and others v. Bashir Ahmad Khan and others A.I.R. 1956 Allahabad 94 it has been held that sec. 96(3) would apply to appeals from consent decrees passed in appeal by virtue of sec. 108 and furthermore the principle of estopped upon which sec. 96(3) is based applies equally to appellate decrees which have been passed on consent of the parties. It is therefore clear that if the decree passed by the first appellate Court was in pursuance of the consent of parties this appeal would not lie against any such decree.
(3.)It is no doubt true as pointed out by Mr. Patel the learned advocate for the appellant that there was no compromise purshis put in by the parties on which any order was based by the Court and that therefore anything stated in the judgment about the learned advocates of the parties having agreed to certain order being passed cannot be said to be a decree passed in pursuance of consent of parties in that appeal. Besides it was at the most a concession on the part of the advocate and cannot therefore be the basis of a decree so as to bar any appeal from such a decision. Now sec. 96(3) of the Code does not say that the consent of parties shall be in writing. It merely requires that it should be a decree passed by Court with the consent of parties. In that event no appeal can lie. It is therefore clear that the consent of parties may be expressed in writing put in by them or their advocates or orally made by them or their advocates before the Court. What is necessary is that the decree must appear to have been passed on such basis viz. on consent terms stated before the Court. If that is clear either from the last order or from the judgment passed by the Court it can be easily said that the order or a decree came to be passed in pursuance of the consent of parties as contemplated under sec. 96(3) of the Code.