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Civil Revision No. 797 of 1960, decided on 16th November 1960.

O. XXIII, r. 3, O. XLIII, r. 1 (m) & S. 151‑Order rejecting application under O. XXIII, r. 3 for non‑prosecution‑Not appeal-able under O. XLIII, r. 1 (m) Remedy by way of revision or under S. 151 before trial Court.

Surajmal Keshan v. R. A. Wood 43 C W N 1113 rel.

Rohini Kanta v. Rajani Kanta Bhattacharjee and others 38 C W N 648 agreed.

A. M. Haidermota for Petitioner.

Abdur Rab for Opposite‑Party No. 2.

This Rules was obtained by the plaintiff in Money Suit No. 14 of 1958 pending in the Court of the Second Sadar Munsif, Comilla against the defendants opposite‑parties herein for recovery of a sum of Rs. 1,399.

2. The defendants on a subsequent date filed a petition under Order XXIII, rule 3 of the Code of Civil Procedure stating that the dispute has been compromised between the defendants and the plaintiff out of Court. This application was set down for hearing on 2nd April 1960. On the 2nd April 1960, the defendants filed an application for adjournment of the hearing of the application under Order XXIII, rule 3 of the Code of Civil Procedure on the ground that certified copy of a certain telegram sent by the brother of the plaintiff to the plaintiff on a previous date of hearing will be necessary for hearing of the application. This telegram relates to the following facts. On a previous peremptory date of hearing a hazira was filed in the name of the plaintiff, but no steps being taken the suit was dismissed for default. After the dismissal order was passed by the Court the brother of the plaintiff sent out the aforesaid telegram to the plaintiff who was away in the rural area in the district of Comilla. From this telegram the defendants possibly wanted to show that the plaintiff had committed fraud on Court by filing a false hazira. I do not see the relevancy of the telegram in the present proceedings under Order XXIII, rule 3 of Code of Civil Procedure as later on the suit was restored to file on an application under Order IX, rule 9 of the Code of Civil Procedure by the plaintiff and the defendants have not taken any steps to challenge the order of restoration of the suit. This application of the defendants for adjournment on 2nd April 1960 was rejected by the learned Munsif and I should say rightly. The parties were ordered to be ready for hearing of the applica tion under Order XXIII, rule 3 of the Code of Civil Procedure. But the defendants instead of going into the hearing of the appli cation filed another application for adjournment on the ground that they had not brought their witnesses on that date. This application too was rejected by the learned Munsif. At 4‑15 p. m., the learned Munsif dismissed the application under Order XXIII, rule 3 of the Code of Civil Procedure for non‑prosecution.

3. Against the said order of dismissal of the application under Order XXIII, rule 3 of the Code of Civil Procedure for non‑prosecution and also against the order passed by the learned Munsif earlier in the case on the second application for adjourn ment an appeal was taken to the learned District Judge by the defendants opposite‑parties herein. The appeal was heard by the learned Subordinate Judge. First Court, Comilla. The learned Subordinate Judge allowed the appeal and passed the following order: "That the appeal be allowed on contest without cost on any side. The, order passed by the Court below rejecting the petition under Order XXIII, rule 3 of the Code of Civil Procedure is set aside and the petition be sent back on remand for a hearing after informing both the parties and fixing the date for taking evidence and hearing arguments".

4. Against this order of the learned Subordinate Judge the plaintiff has come upon revision before this Court.

5. Mr. Haidermota, the learned Advocate for the petitioner before me has contended that the application under Order XXIII, rule 3 of the Code of Civil Procedure having been dismissed for non‑prosecution no appeal against the said order lies. There is considerable force in the submissions of Mr. Haidermota on this point, Order XXIII, rule 3 of the Code of Civil Procedure reads as follows :‑

"Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful argu ment or compromise, or when 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 argument, com promise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit."

Provisions for appeal against different orders are provided for in order XLIII of the Code of Civil Procedure. Clause (m) of rule 1 of Order XLIII of the Code of Civil Procedure reads as follows :‑

"An appeal shall lie from the following order under the provisions of section 104, namely: ---‑

An order under rule 3 of order XXIII recording or refusing to record an agreement, compromise or satisfaction."

From a reading of this clause it is clear that an appeal shall lie against an order recording or refusing to record an agreement, compromise or satisfaction. In the present case there is no, question of either recording a compromise or refusing to record a compromise. The order of the learned Munsif was dismissing the application under Order XXIII, rule 3 of the Code of Civil A procedure for non‑prosecution. The proper remedy to the defendants was either to challenge that order‑of dismissal by way of revisional application or by filing an application under section 151 of the Code of Civil Procedure before the learned Munsif.

6. I am, therefore, of opinion that the order of the learned Munsif dated 2nd April 19 0, rejecting the application under Order XX11I, rule 3 of the Code of Civil Procedure for non‑1 prosecution is not an order appeal-able under Order XLLII, rule 1 (m) of the Code of Civil Procedure. I am supported in my view by a Division Bench decision of the Calcutta High Court in the case‑of Surajmall Keshan v. R. A. Wood (43 C W N 1113). In that case the defendants filed an application under Order XXIII, rule 3 of the Code of Civil Procedure for recording a compromise arrived at out of Court. This application under Order XXIII, rule 3 of the Code of Civil Procedure was set down for hearing on 7th February, 1938. On that date the defendants being absent the application under Order XXIII, rule 3 of the Code of Civil Procedure was dismissed for default. On 10th February, 1938 the defendants filed an application under section 151 of the Code of Civil Procedure for setting aside the order of dismissal of the petition under rule 3 of Order XXIII, C. P. C. Upon that applications under section 151 of the Code of Civil Procedure the learned Subordinate Judge recorded an order rejecting the same on the ground that the defendant's remedy is only by way of appeal. Against that order of the learned Subordinate Judge the High Court was moved in its revisional jurisdiction and Derbyshire, C. J., and Nasim Ali, J., who constituted the Bench held as follows: --‑

"It has been suggested that there is an appeal against that order under Order XLIII, rule 1 (m) of the Code of Civil Procedure I doubt whether that is so. It seems to me that it was not a refusal to record an agreement but a refusal to consider it on that day because the Appellant was not there. I think that defendant No. 1 the appellant, was correct in the step he took on February 10, 1938, in asking the learned Subordinate Judge to set aside the order made on February 7, 1938, dismissing the petition to record a compromise."

The next contention of Mr. Haidermota is, that, even if an appeal lay against the order of tile learned Munsif, yet the proper direction by the learned Subordinate Judge ought to have been to proceed with the suit and not with the application under Order XXIII, rule 3 of the Code of Civil Procedure. Mr. Haidermota's argument on this point is based on the decision in the case of Rohini Kanta Bhattacherjee v. Rajani Kanta Bhattacherjee and others (38 C W N 648). In that case a Division Bench of the Calcutta High Court observed as follows:‑

"If one party states that he compromised the matter out of Court and the other party denies the same it is, in our opinion, not the duty of the Court to stay the suit and to proceed to hear evidence on the first issue whether the parties out of Court had made a lawful agreement or not. If that were permitted the law's delay which is already excessive, would be enormously increased."

7. Since I have already held that no appeal lay against the order of the learned Munsif dismissing the application under Order XXIII, rule 3 of the Code of Civil Procedure for non- prosecution I do not think it necessary to discuss the second point in details. Moreover I am in agreement with the obser vations made by the Division Bench of the Calcutta High Court in the case reported in 38 C W N 648.

8. Mr. Abdur Rab, the learned Advocate appearing for the opposite‑party has contended before me that the order of the learned Munsif dismissing the application under Order XXIII, rule 3 of the Code of Civil Procedure for non‑prosecution amounts to refusal to record a compromise, and as such is appeal-able under Order XLIII, rule 1 (m) of the Code of Civil Procedure. In view of what I have said above I am unable to agree with the contention of Mr. Rab.

9. In the result, therefore, this Rule is made absolute. The judgment and order of the learned Subordinate Judge are set aside and the order passed by the learned Munsif on 2nd April 1960, under Order XXIII, rule 3 of the Code of Civil Pro cedure is restored. The order granting ad interim stay is vacated.

There will be no order as to costs.

S. B./A. H.

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