URDU TYPING 826 (PLP)

(a) Civil Procedure Code (V of 1908), O. XLI, r. 1 (2) ground not mentioned in memorandum of appeals‑Allowed to be raised in argument‑ ("Whether decree appealed against was consent decree"). (b) Civil Procedure Code (V of 1908), S. 96 (3) read with O. XXIII, r. 3 and O. XLIII. I (m)‑"Consent decree"‑Words and phrases‑"Consent"‑Explained‑Contract Act (IX of 1872), S. 13‑"Consent decree" not confined to decree passed under r. 3, O. XXIII‑Test for determining whether decree is "consent decree"‑Oaths Act (X of 1873), S. 11‑Decree, whether "consent decree"‑Civil Procedure Code (V of 1908), O. XLHI, r. 1 (m) Decree not preceded by order recording agreement‑Whether appeal-able‑ Civil Procedure Code (V of 1908), S.

99. Held, that when. a decree is passed in accordance with an adjustment, agreement, compromise or satisfaction recorded under the provisions of rule 3 of Order XXIII, 'C. 'P. C. it should be regarded as a consent decree: The word "consent" occurring in section 96 (3), C. P. C., or the term "consent decree", is nowhere defined in the Civil Procedure Code. In the language of Webster's New International Dictionary, the word `consent' means: "voluntary accordance with, or concurrence in what is done or proposed by another." The word "consent" is also defined in sections 13 of the Contract Act in the following terms: "Two or more persons are said to consent when they agree upon the same thing in the same sense." It would appear, therefore, that the decree contemplated in sub section (3) of section 96 is a decree passed by the Court on the basis of a proposal made by one party and concurred in or agreed to by the other. In other words, this is a decreee which is not the result of an adjudication by the Court but springs from the agreement or the concord of the parties themselves. The term "consent decree" as used in section 96 (3) is not confined to the decrees passed in accordance with Order XXIII, rule

3. In separating subsection (3) of section 96 from Order XXIII, rule 3 and by using a different terminology, the Legislature clearly intended to include in the term "consent decree" something more than merely a decree passed under Order XXIII, rule

3. A consent decree can be passed otherwise than merely in accordance with the provisions of Order XXIII, rule.

3. The true test for determining whether or not a decree should be regarded as a consent decree, lies in ascertaining the real inten tion of the parties, and not merely whether a particular procedure, for example, the one embodied in Order XXIII, rule 3, C. P. C., has been observed. If, from the circumstances of the case, the real intention of the parties can be gathered to the effect that they are binding themselves to a particular decree by reason of an agree ment, compromise or adjustment then the decree must be regarded as a consent decree, from which no appeal would lie in accordance with section 96 (3). Most of such cases would fall within the purview of Order XXIII, rule 3, C. P. C., but there may be cases not falling strictly within the four corners of this rule, which would nevertheless be cases of consent decrees. There can be no doubt that the Oaths Act, 1873 does not concern itself with any agreement, compromise, or adjustment in a suit. It only provides for a procedure by which certain facts may be held to be conclusively proved as against the party which offers to be bound by the oath administered under the Act. To this extent it may be agreed that the decision of a suit given with reference to provisions of the Oaths Act, 1873 is not an adjustment of the suit in terms of rule 3, of O. XXIII, C. P. C. but it is not possible to subscribe to the view that where a decree follows in respect of the whole or part of the subject‑matter of a suit on the basis of a statement made by a party, or a witness, on oath, the persuance of the agreement of the parties to the suit the decree should not be regarded as a consent decrees. In such a case the agreement between the parties has matured into an adjustment, once the oath is taken and, therefore, the decree that follows is nothing but a consent decree. Of course, if the intention of the parties is not to obtain a decision of the whole or part of the subject‑matter of the suit, but is only con fined to finding a short cut for the proof of some fact or facts in controversy by means of a statement on oath, no decree can immediately follow such oath and the question of determining the nature of the decree in such a case does not really arise. Order XXIII, rule 3 is procedural in nature, and any defect or irregularity iz complying with the provisions of that rule would be curable under the provisions of section 99 of the Civil Procedure Code if it is found that such defect or irregularity has not affected the merits of the case or the jurisdiction of the Court. If, therefore, a Court passes a decree in accordance with an agreement or compromise or satisfaction, and the decree amply makes it clear that it is the result of such a compromise or agree ment or satisfaction, it can safely be stated that the omission to pass a separate order recording the compromise, agreement or satisfaction has not affected the merits of the case. In other words, the omission to pass a separate order recording the agreement, compromise or satisfaction, is curable under section 99 of the Civil Procedure Code 1908. A decree passed under the provisions of rule 3, Order XXI1I, Civil Procedure Code, does not cease to be a consent decree simply for the reason that it is not preceded by an order recording the agreement, compromise or satisfaction. The requirements of the rule are sufficiently complied with if the decree contains a reference to the compromise and clearly indicates that it is based on the compromise or agreement etc. The decree, as such, would not be appeal-able under the provisions of section 96 (3) of the Civil Procedure Code, 1908. The decree passed on the basis of a compromise in a case, where there is no separate order recording the compromise, is to be construed as including an order for the recording of the compromise, or refusing to record the compromise as the case may be. Therefore, an appeal should be permitted in such a case on the limited question whether an agreement, compromise or satisfaction was in fact arrived at or not between the parties. This would be an appeal under Order XLIII, rule 1, clause (m) and not an appeal on merits as the decree being a consent decree would not be appeal-able under section 96 (3) of the Civil Procedure Code, 1908. For a recapitulation of the above‑mentioned conclusions, Vide. [Case‑law referred to.]