FIRST APPEAL No.638 OF 1993 Against the order dated 4.8.1993/5.8.1993 and the final decree singed on 11.8.1993 by Sri Bharat Ji Singh, the learned Subordinate Judge, 4th Court Sasaram in Title Suit (Partition) No.462 of 1971. VIJAY MOHAN SINGH ………… DEFENDANT/APPELLANT Versus SANJAY KUMAR & ORS. ……….. PLAINTIFFS/RESPONDENTS ******** For the appellants : Mr. D. P. Sharma, Advocate For the respondents : Mr. Kamal Nayan Choubey, Senior Advocate Dated : 23rd day of August, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendant Vijay Mohan Singh had filed this appeal against the order dated 4.8.1993/5.8.1993 and the final decree sealed and signed on 11.8.1993 by Sri Bharat Ji Singh, the learned Subordinate Judge, 4th Court, Sasaram in Title Suit (Partition) No. 462 of 1971. 2. It appears that the plaintiffs-respondents filed Title Suit No. 462 of 1971 for partition of the suit property. The defendant appeared in the suit. Thereafter, a compromise was arrived at between the parties and compromise application was filed. After hearing the parties the learned Court below recorded the compromise on 19.6.1976 and ordered that a final decree be prepared and the compromise Mungeshwar Sahoo, J. -2- application shall form part of the final decree. It appears that thereafter on the basis of this direction final decree was prepared and it was notified on 5.8.1993 and then it was signed on 11.8.1993. The compromise application signed by both the parties is part of the said final decree. 3. The learned Senior Counsel Mr. Choubey appearing on behalf of the respondents raised a preliminary objection about the maintainability of this first appeal in view of the provision as contained in Section 96 (3) C.P.C. 4. Learned counsel for the appellant on the other hand, submitted that the final decree was prepared ex parte after a long time and, therefore, it is maintainable. The learned counsel further submitted that the learned court below could not have prepared the final decree after such a long period in view of Article 137 of the Limitation Act. 5. In view of the submissions of the parties, the question arises for consideration is, as to whether this first appeal is maintainable or it is being barred under Section 96(3) C.P.C. because it is against final decree. If it is held that the appeal is maintainable then only the question raised by the learned counsel for the appellant will be necessary to be gone into. 6. Section 96(3) C.P.C. reads as follows : “Section 96 (3) :- No appeal shall lie from a decree passed by the court with the consent of the parties.” 7. In view of the above provisions, appeal is not maintainable against a consent decree. In this case, it is admitted fact that the parties compromised and thereafter hearing the parties the learned court below found the compromise to be legal and valid and recorded -3- the same and disposed of the partition suit with a direction to prepare final decree and further it was directed that the compromise application shall form part of the final decree. Accordingly, the final decree has been prepared and from the final decree it is apparent that the compromise application is part of the final decree. 8. In view of the above facts and circumstances, in my opinion this first appeal is not maintainable and is barred under Section 96(3) C.P.C. Accordingly, I hold that this first appeal is not maintainable. In the result it is dismissed. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 23rd August, 2010 S.S./N.A.F.R.