IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. S.B. CIVIL SECOND APPEAL NO. 353/2003 03.01.2008. HON'BLE MR. JUSTICE DALIP SINGH Shri Nitin Jain, for the appellant. Shri R.M. Jain, for Shri Arjun Karnani, for the respondent. The respondent No.1 has put in appearance and the service upon the respondent No.2 sub tenant is accordingly dispensed with as the respondent No.1 is the affected party. Vide order dated 9.10.2007 the substantial questions of law which was framed, was whether in the peculiar facts and circumstances the learned lower appellate court was entitled to dismissed the appeal as not maintainable. Learned lower appellate court dismissed the appeal on the ground that the trial court had disposed of the suit on the basis of alleged compromise dated 22.1.1999 and in view of Section 96 CPC no appeal was maintainable against a compromise decree. In appeal before the learned lower appellate court filed by the plaintiff it was alleged that the alleged compromise dated 22.1.1999 was obtained by fraud. The submission of the learned counsel for the appellant was that order 43 rule 1A Sub rule 2 an appeal is maintainable. The said provision of Order 43 Rule 1A (2) CPC reads as follows: “1A. Right to challenge non-appealable orders in appeal against decrees.- (1) XXX XXX XXX (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.” In the appeal against the decree passed in the suit after recording a compromise or refusing to record a compromise it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. On the basis of above, the learned counsel for the appellant contended that the appeal was maintainable and the learned lower appellate court has committed an error in dismissing the appeal as not maintainable. Learned counsel for the appellant in support of his contention relied upon a three Judges Bench decision of the Hon'ble Supreme Court in the case of Kishun @ Ram Kishun (dead) through LRs. Vs. D. Bihari by LRs. reported in 2005 (2) WLC (SC) Civil Page 348 wherein the Hon'ble Supreme Court has held that the bar of Section 96 of sub section 3 C.P.C. is not attracted to the appeal by a person aggrieved where aggrieved party contests the factum of compromise. Learned counsel appearing on behalf of the respondent No.1 on the other hand has relied upon a decision of the Hon'ble Supreme Court of two Judges Bench in the case of Pushpa Devi Bhagat Vs. Rajinder Singh reported in AIR 2006 SC 2628. The submission of the learned counsel for the respondent is that as has been laid down in para 12 in Pushpa Devi's case that the remedy for the aggrieved party would be to approach the court that recorded compromise. I have considered the rival submissions and I am of the view that the learned lower appellate court has not taken into account the provisions of order 43 rule 1A C.P.C. In view of the provision of Order 4 Rule 1A (2) where the appeal is filed by a person aggrieved by the compromise decree,it is open for the appellant to contest the decree on the ground that the compromise could not have been recorded. Even otherwise as has been held by their Lordships of the Hon'ble Supreme Court in Pushpa Devi's case, relied upon by the respondent, in para 12 of the report which reads as follows : “..... Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not.....” and similarly the Hon'ble Supreme Court in Kishun Vs. Behari (D) by Lrs. has also observed that in para 9 of the said judgment which reads as follows : “In this situation, we think that interests of justice would be sub-served if the orders and decrees passed in the suit, in the appeals and in the second appeal, are set aside and the suit remanded to the trial court for making a proper enquiry into the question whether there was a compromise of the disputes between Behari on the one hand and Kishun and Ram Charan on the other and to record a finding thereon in terms of the proviso to Order XXIII Rule 3 of the Code. Now that the legal representatives are before us, the trial court will direct the formal correction of the cause title in the plaint, giving an opportunity to the supplemental plaintiff to bring on record other legal representatives of the parties to the suit, if any. The trial court will thereafter proceed to decide the question of the existence or otherwise of a compromise or an adjustment of the dispute. If it comes to the conclusion that there was a compromise of the dispute, it will consider whether the compromise is lawful and could be accepted by the court. In case it is found to be lawful, a decree would be passed in terms of the compromise. But if it is found that no compromise, as asserted has been proved, or an adjustment of the dispute is proved, the trial court will proceed to decide the suit on merits after giving the parties before it, the necessary opportunity to establish their respective cases.” Thus in both the cases their Lordship of the Hon'ble Supreme Court have held after considering the provisions of order 23 rule 3,Section 96 Sub Section 3 as well as order 43 CPC that the proper course would be in such cases to be followed by the appellate court where the factum of compromise is disputed to direct the parties to approach the learned trial court for adjudication of the matter in the light of what has been laid down by the Hon'ble Supreme Court. In view of the above,approach to the learned lower appellate court in the instant case is not in accordance with law laid down by Hon'ble Supreme Court. Consequently, I would allow this appeal and set aside the judgment and decree passed by the learned trial court as well as the learned lower appellate court and remand the case to the learned trial court where the learned trial court after affording an opportunity to the parties would decide the matter in the light of the objections raised by the plaintiff appellant before the learned lower appellate court and this court about the recording of the compromise and its validity and the same being tainted with fraud. This second appeal is allowed to the extent as mentioned above. The parties are directed to appear before learned trial court on 04th February 2008. There will be no order as to costs. (DALIP SINGH),J. Ramchandrkhatri,PS