P L D 1963 Dacca 163 (PLP)

"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. Rule made absolute.