RFA/9/2006 of Palden Bhutia and Ors. Vs Januka Chhetri and ors on 20 November 2006

JUDGMENT

A. P. SuBBEL

This Appeal is directed against the judgment anddecree dated 24.3.2006, passed by the learned District Judge(South & West) at Namchi, in Title Suit No.9 of 2005.

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The facts of the case, relevant for the purpose ofthis Appeal, in a nutshell, are that the Appellants herein, whowere minors, filed a Civil Suit being Civil Suit No.14 of 1988through their mother and natural guardian against the presentRespondent No.1 and others in the Court of learned CivilJudge (West) at Gyalshing for declaration, recovery ofpossession and other reliefs in respect of a piece of land i.e.

the suit land in the year 1988. In the said suit the case of thePlaintiffs/Appellants, in short, was that they were Sikkimese bybirth and members of Bhutia Tribal Community of Sikkim,whereas the Defendants/Respondents were the members ofNepali Community who did not hold Sikkim Subject. The suitland was their ancestral and joint family property. As such,their father Late Gompu Bhutia, who had sold the suit land tothe Respondents, had no right to alienate the same. Thealienation made by him was, therefore, not binding upon thePlaintiffs/Appellants. However, in course of the proceedings,the parties compromised the matter on the intervention ofwell-wishers of both parties and filed a joint compromisepetition and the suit was disposed of by the learned CivilJudge vide order dated 17.5.1990 in terms of the saidcompromise. Subsequently, in the year 2005 the presentAppellants who are the legal heirs of late Gompu Bhutiainstituted a suit being Title Suit NO.9 of 2005 in the Court of thelearned District Judge (South and West) at Namchi on 25thOctober, 2005 for declaration that the compromise decreedated 17.5.1990 passed by the learned Civil Judge, WestSikkim in Civil Suit No.14 of 1988 was untenable in the eye oflaw, and for other reliefs including the prayer for restoration of possession after setting aside the decree. The Respondents

possession after setting aside the decree. The Respondents contested the suit by filing joint written statement, raisingseveral grounds, wherein a preliminary issue relating tomaintainability of the suit was raised. On the basis of thepleadings, the learned trial Court vide, Order dated 17.12.2005framed 13 Issues, out of which Issue Nos.1, 2 and 3 were to beheard as prelimir`ary issues. However, on the submissionsmade by the learned Counsel for the parties on 13.3.2006, theIssue No.1 relating to bar of Rule 3A of Order Xxlll CPC (IssueNo.1) was taken up first for hearing and vide, impugnedjudgment and decree dated 24.3.2006, the learned trial Courtdecided the preliminary issue, holding that the suit was barred.by the provisions of Rule 3A of Order 23 of CPC andaccordingly dismissed the suit. Being aggrieved by the saidjudgment/decree dated 24.3.2006, the Plaintiffs/Appellantshave come up in the present Appeal.

3. Mr. A. Moulik, learned senior counsel assisted by Mr.N. G. Sherpa and Ms. Kesang Diki Bhutia, learned Counselappearing on behalf of the Plaintiffs/Appellants and Mr. R. K.Agarwal, learned Counsel assisted by Mr. J. 8. Pradhan,learned Counsel were heard.

4. The submission of Mr. A. Moulik, the learned SeniorCounsel was that, the suit filed by the Plaintiffs/Appellants forsetting aside the compromise decree was maintainable in EEii law, as it was not hit by the provisions of Rule 3A of Order 23CPC. According to him, the words `not lawful' occurring inR-3A of Or. Xxlll have reference only to the cases which fallwithin the contemplation of Sec. 23 of Indian Contract Act,and in all other cases the bar would not operate and a suitwould lie. The submission of Shri R. K. Agarwal, LearnedCounsel for the Respondents, in reply, was that the groundstaken in the suit filed by the Plaintiffs/Appellants do not falloutside the purview of Sec. 23 of the Indian Contract Act andthus the suit was not maintainable in view of the provisions ofRule 3A of Or. Xxlll of CPC.

5. The short question that falls for consideration of thisCourt is, whether an independent suit would lie to set aside acompromise decree, in cases where the ground taken in thesuit falls outside the purview of Sec.23 of the Indian ContractAct.

ln order to appreciate the rival submissions madeby the learned Counsel for the parties, it would beappropriate to briefly notice the relevant provision of C.P.C.both before and after the change brought about by theAmending Act of 1976.

7. Before the amendment of various provisions of cpcby the Amending Act No.104 of 1976, Or. XXIll Rule 3 CPC

provided that, where it is proved that a suit has been adjustedwholly or in part by any lawful agreement or compromise, theCourt shall pass a decree in accordance therewith, so far as itrelates to the suit. Order XLlll Rule 1(in) provided that anappeal shall lie from an order passed under Or. Xxlll R.3recording or refusing to record a compromise. Under Sec.96(3) no appeal lay from a decree passed by the Court withconsent of parties. Therefore, under the law as it stood beforethe amendment in 1976, a consent decree could be set asidein a Misc. Appeal under Order XLlll Rule 1 (in) as well as by wayof a civil suit.

After the amendment the above Order Xxlll Rule 3C.P.C. stands as follows: - "3. Com romise of suit - Where it is proved lo

the satisfaction Of the Court that a suit has beenadjusted wholly or in part by any lawfulagreement or compromise, (in writing andsigned by the pcihies) or where the defendantsatisfies the plaintiff in respect of the whole orany part of the subject-mcitler of the suit, theCourt shall order such agreement, compromiseor satisfaction to be recorded, and shall pass adecree in accordance therewilh (so far as itrelates to the parties to the suit, whether or notthe subject-matter of The agreement,compromise or satisfaction is the same as thesubject-matter of the suit):

[Provided that where it is alleged by oneparty and denied by the other that anadjuslmenl or satisfaction has been arrived at,the Court shall decide the question, but noadjournment shall be granted for the purpose i- of deciding the question, unless the Court, forreasons to be recorded, thinks fit to grant suchadjournment.I

[Exp/onoti.on - An agreement orcompromise which is void or voidable underthe Indian Contract Act, 1872 (? of 1872) shallnot be deemed lo be lawful within the meclningof this rule.I

Rule 3A of Order XXIll CPC which is a new rule inserted by the said Amendment is as follows:- "3A. Bc]r fo sol.I - No suit shall lie to set aside adecree on the ground that the compromise onwhich the decree ls based was not law(ul."

A plain reading of the above provision would go toshow that no suit shall lie to set aside a compromise decreeon the ground that the compromise on which the decree isbased was not lawful. The result is that no suit can be filed tochallenge a compromise on the ground that it was not lawful,after the insertion of the above new rule. This provision cameup for consideration of various High Courts and the ApexCourt in a number of decisions. As can be seen from whatfollows, the majority view is that an independent suit to setaside a consent decree is now barred by law.

8. A reference to the following few decisions, whichhave been referred to and relied on by the learned Counselfor the Respondents, would make the above position morethan clear: - dr ln Sml. Tarabai vs. V. S. Krishnaswamy Rao (AIR

J985 Komolcko 270J it has been held that now a suit cannotbe filed to challenge a compromise decree even if it was notlawful in view of the provisions contained in Order 23 Rule 3ACPC.

ln Shri lswar Gopalji & Others vs. Bhagwan Show (AJR J982 Co/cu#o J2J it has been similarly held that a suit forsetting aside a consent decree would be barred under Order23 Rule 3A of CPC.

ln Thakur Prasad vs. Bhagwan Dos 1985 MP 171 (DB)

a Division Bench of Madhya Pradesh High Court relying on theabove judgment held that now that Rule 3A has been addedto Or. 23 CPC a suit cannot be filed to challenge acompromise even if it was not lawful.

In {2004)3 CHN 146 (DB) Ashish Kumar Ghosh vs.

GopoJ Chcindro Ghosh a Division Bench of Calcutta HighCourt has observed that Rule 3A of Or. 23 CPC, whichoperates after a compromise is recorded, makes it specificallyclear that no suit shall lie to set aside a decree on the groundthat the compromise on which the decree is passed was notlawful.

ln Bonworj [o/ vs. Chondo Devi. ]993 I SCC 58J, theApex Court has held that after the amendment of 1976

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neither th,,e appeal against the order recording compromisenor a remedy by way of filing a suit is available in casescovered by Rule 3A of Order 23. As such, a party challengingthe compromise can file a petition under proviso to Rule 3 ofOrder 23 or an appeal u/S. 96(1 ) of the Code in which he cannow question the validity of the compromise in view of Rule 1 -A of Or. XLIII of the Code.

9. The above decisions make it amply clear that theright to challenge a compromise decree by filing a suit hasnow been taken away and consequently, a suit to set aside acompromise decree is barred. This is how the law now standson the point.

JO. Having thus noticed the settled legal position on thepoint we may now deal with the submission made by Mr.Moulik, the learned Sr. Counsel. It is the specific stand takenby the learned Counsel that since Or. Xxxll Rule 7(1)A CPCwhich requires an application for leave, an affidavit of theguardian in the suit, and a certificate from the pleader, to befiled in the suit was not complied with a suit to set aside thecompromise decree in the present case would lie, despite thesettled position being that no suit lies to set aside acompromise decree. According to him, the ambit and scopeof the word `unlawful' occurring in Order 23 Rule 3A does not dr embrace within its sweep the kind of legal infirmity arising outof non-compliance of a statutory provision as in the presentcase. The learned Sr. Counsel in elaboration of his submission,further contended that violation of term of any agreementfalls within the province of Contract Act but violation of astatutory provision falls outside it, and in such a case, theprovision contained in the new Rule 3A of Or. XXIll, CPC is notattracted.

Therefore, the sum and substance of the submissionof Mr. Moulik is that, violation of the provisions contained inOrder Xxxll, Rule 7(1) A of the Code raised by thePlaintiffs/Appellants in the case, being independent of andfalling outside the sphere of Contract Act Order Xxlll, Rule 3A isnot attracted. Hence, in case of compromise decreeinvolving non-compliance of Order XXXII Rule 7(1)A, aseparate suit to set aside such compromise decree would liein spite of the specific provision contained in Or. XxllI Rule 3Aof the Code.

Before proceeding further with the consideration asto whether the above submission urged by the learned SeniorCounsel has any force, it would not be out of place to takenotice of the fact that a similar point raised on behalf of theAppellan+ .in Anant Mahcldeo Godbole vs. Achut Ganesh Godbo/e a Ors. -A/R J98l Bombay 357 (referred to by theRespondents) was rejected by a learned Single Bench ofBombay High Court. What was contended in the said casewas that, if the cause of action alleged covers cases, whichare treated as not lawful by Sec. 23 of the Indian ContractAct, then and then only the bar of Rule 3A of Or. XXIII CPCwould be attracted. While repelling the contention, it wasobserved that the words `not lawful' by their very nature, arewide enough and would take in the cases where parties setup want of authority or exceeding of authority in the matter ofagreements or compromise on the basis of which the decreeare made and, as such, all those types of challenges cannotnow, because of the bar to suit, be the subject matter ofsecond suit. It was then accordingly held that a second suitbased on the cause of action that the compromise itself wasnot lawful, is clearly barred under the provision contained inRule 3A of Or. XXXIll CPC. Since the issue involved in thepresent case is identical, there is no doubt that this decisionsquarely covers the controversy raised by the parties.However, it is the claim of Mr. Moulik that the stand taken byhim finds support from several decisions of other High Courts,and as such, it would be appropriate to glance through the dr different decisions relied on by the learned Senior Counsel before coming to any final conclusion on the issue.

The following are the relevant decisions relied on by Mr. Moulik in support of his submission :-

1. AIR 1?85 Pal.na 163

2. AIR 1?86 0risso 28

3. AIR I?8? SC 147and

4. Air 1995 SC 1440.

5. AIR 2003 J&K 6

ln order to ascertain the specific points of law

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decided in the above cases, so as to see if it supports thestand taken by the Ld. Sr. Counsel, it would be necessary tobriefly notice the relevant facts and the legal issues that wereinvolved and that were decided in all the above cases.

ln Chandreswar Sharma & Another vs. Jai Krishna Shormo (A/R 1985 PalnoJ the question that came forconsideration was, whether a suit would lie to set aside acompromise decree passed without complying with theprovisions contained in Order Xxxll Rule 7 CPC. The relevantfacts in the case were that, an appeal was filed by thedefendants against a preliminary decree passed in thepartition suit. This appeal was permitted to be withdrawn onthe submission that the suit was going to be disposed of on thebasis of a compromise. Subsequently, the plaintiffs filed apetition objecting to the compromise on the ground that the

same was not genuine, as no leave had been asked for onbehalf of the minors for entering into a compromise petition.In these circumstances, it was held that recording ofcompromise in absence of any petition under Order Xxxll Rule7 for leave to enter into compromise was illegal and thematter was remanded back to the trial Court forconsideration.

ln Jadumani Naik 8. others vs. Jyotsna Naik 8.

Others (A/R J986 0rt.sso 28J, the permission sought by theguardian appointed to represent the minor plaintiffs to signthe compromise petition on behalf of the minors having beengranted by the Court, the guardian entered into acompromise and the. compromise was accordingly recorded.Subsequently, the compromise so entered into, waschallenged by one of the minor plaintiffs on attaining majority,on the ground that the compromise was fraudulentlyobtained and the requirement of Order Xxxll Rule 7 CPC hadnot been complied with. In these circumstances, it was heldthat the minor on attaining majority, can reopen acompromise which is vitiated by non-compliance of new sub-Rule (1 A) of R.7 of Or. Xxxll.

In Dhirendra Kumar Garg & Others vs. Smt. Sugandi Join fA/R 1989 SC J47) the relevant facts were that, an dr application purporting to be a compromise petition was filedon behalf of all parties, which was recorded and the suitwhich was an eviction suit, was disposed of in its terms by theAppellate Court on 23.4.1966 setting aside the entire decreewith the parties bearing their own cost. The compromiseappeared to be one sided on the face of it, in so far as theminors were giving up their right under the trial Courts decreeboth in respect of eviction as well as in respect of arrears ofrent and damages. On the said compromise decree beingchallenged by the Respondents, it was held that the guardianof the minors was guilty of gross negligence in entering intocompromise by failing to take into account the interest of theminors. In these circumstances, it was held that thecompromise decree was liable to be set aside.

In Ashrafi Lal vs. Smt. Koli (AIR 1995 SC 1440), +he question that arose for consideration was, whether thejudgment in an earlier declaratory suit fell within the ambit ofsection 44 of the Evidence Act, and for that purpose, whetherit was necessary to examine if an inference of fraud orcollusion could be drawn from the gross negligence on thepart of the next friend of the minor, in conducting the earlierdeclaratory suit. It was held that, if an inference of fraud orcollusion can be drawn from the negligence or gross B=

negligence of the next friend, it would be permissible for theminor to avoid the I.udgment or decree passed in the earlierproceedings, by invoking Section 44 of the Evidence Act,without taking resort to a separate suit for setting aside thedecree or judgment.

As it can be noticed, none of the above decisionsdeal with the question as to whether a separate suit would lie,to set aside an unlawful compromise decree. The onlydecision that deals with such question is the decision ofJammu & Kashmir High Court in Gu/am Raso/ Reshi. ys. Gu/omHosclm Reshj AjR 2003 J&K 6. As can be noticed from therelevant facts of the case, the decision deals with the directquestion of maintainability of separate suit to set aside acompromise decree on the ground of unlawfulness. As perthe facts narrated in the case, a suit for declaration andinjunction was filed against the Respondent No.1 in the Courtof Munsiff, Anantnag on 26.4.1968. The Respondent No.I wasminor at the relevant time. The suit was compromised on18.6.1968 after showing that the minor Respondent No.I wasrepresented by a guardian ad litem. The compromise decreewas followed. Subsequently, this compromise decree waschallenged by filing a civil suit being Civil Suit No.9 of 2003 inMunsiffs Court, Anantnag on the ground that the compromise EEi decree was brought into existence fraudulently in so far as theminor Respondent was not at all represented in the suit. Thequestion of law that arose for determination of the Court was,whether a suit challenging a compromise decree under Or.Xxlll R. 3A was competent and whether such suit can betreated as an application under Sec.151 CPC by the Courtsbelow. It was observed that "Legal implications ofcontravening provisions of Rule 3 and 7 of Order XXXII CPC hasto be read in Order XXIII Rule 3A CPC. So viewed, Order XXIIIRule 3A CPC does not bar a suit or proceeding to that end.The minor can and is within his rights to bring a suit besidesother conditions applying to move an application under S. 151CPC for recalling/canceling the decree passed by fraud,forgery with prejudice to minor".

J2. No doubt, the above decision clearly lays downthat Order Xxlll Rule 3A does not bar a suit or proceeding toset aside the compromise decree and such suit or proceedingwould be maintainable. It is, however, to be noted that thedecision is not in accord with the law laid down by the ApexCourt in the above Banwarli Lal's case (supra). It is also to benoted that the decision being of a coordinate authority hasonly a persuasive value as far as this Court is concerned.However, before expressing my disagreement or otherwise dr with the view taken in the above decision, it would not be outof place to see if the interpretation placed by the ld. SingleJudge on the provision in question, serves the legislativeobject and is in accordance with the abject and the principleunderlying the new Rule 3A of Or. Xxlll CPC.

J3. In the above Bombay case (AIR 1981 Born.357), ithas been observed that the very object of introducing Rule 3Ain the body of Order Xxlll of the Code was to bar the filing of asecond suit on the ground that the compromise was notlawful. As already noted above, it was held in that case thata party to a suit, which was decreed after accepting thecompromise, is only relegated to the remedy of questioningthe same under Rule lA of Or. XLlll and a second suitchallenging the compromise decree was clearly barred.Similar is the observation made by the Division Bench of M. P.High Court in the aforementioned Thokur Prascid's case (AJR

1985 MP 17J). It was observed that the intention of theLegislature in making the amendments in the Civil ProcedureCode was to simplify the procedure and avoid multiplicity ofproceedings in order to curtail litigation. Therefore, the clearintention in enacting Or. Xxlll Rule 3A and deleting 0.4 Rule1(in) and adding Rule 1-A to Rule XLlll was that, whateverobjection may be against a recording or non-recording of the ir compromise, should be in the same proceedings, i.e., firstly inthe suit, then in appeal u/S. 96.

14. The above view taken by two High courts, namely, Bombay High Court and Madhya Pradesh High Court in thetwo cases cited above, are in consonance with the law laiddown by the Apex Court in (1993) 1 SCC 581. In paragraph 7of the judgment it has been held by the Apex Court asfollows:- "7. By adding the proviso along with an explanation the purpose and the object of theamending Act appears to be to compel thepony challenging the compromise to questionlhe same before the courl which had recordedI.he compromise in question. That court wasenjoined Ilo decide I.he controversy whether theparties have arrived al an adjustment in cilawlul manner. The explanation made it clearthat an agreement or compromise, which isvoid or voidable under the Indian Contract Act,shall not be deemed to be lawful within themeaning of the said rule. Having inlroducedthe proviso cilong with the explanation in Rule 3in order to avoid multiplicity of suit andprolonged litigation, a specific bar wasprescribed by Rule 3-A in respect of institutionof a separate suit for setling aside a decree onbasis of a compromise saying:

"3-A. Bar tELSuil - No suit shall lie lo setaside a decree on the ground that thecompromise on which the decree is based wasnot lawful."

The Apex Court further held in paragraph 13 as follows :- "13 ....................... To mcike The enquiry inrespect of validity of the compromise morecomprehensive, the explanation to the proviso ir says that an agreement or compromise "whichis void or voidable under the Indian ContractAct - "shall not be deemed to be lawful withinthe meaning of the said Rule.................................... As such a partychallenging a compromise can file a petitionunder proviso to Rule 3 Of Order 23, or anappeal under Section 96(1) of the Code, inwhich he can now question the validity of thecompromise in view of Rule 1-A of Order 43 ofthe Code."

The above makes it clear that a suit is not anappropriate remedy for setting aside a compromise decreeon the ground that it is not lawful. As further observed by theApex Court in other paragraphs of the j.udgment, thelegislature having introduced the proviso along with theexplanation in Rule 3 of Or. Xxlll, in order to avoid multiplicity ofsuit and prolonged litigation, a specific bar was prescribed byRule 3A in respect of institution of a separate suit for settingaside a decree based on compromise and being conscious ofthe fact that the right of appeal against the order recording acompromise or refusing to record a compromise was beingtaken away, a new RulelA has been added to Or. XLlll. It isunder this new rule inserted in Or. XLIIl that a right has nowbeen given to a party to challenge the recording of acompromise, questioning the validity thereof, while preferringan appeal against the decree. It has been made clear thatSec. 96(3) of the Code shall not be a bar to such an appeal, because Sec. 96(3) is applicable to cases where the factum ofcompromise or agreement is not in dispute.

15. It is a well-recognized canon of interpretation thatthe abject behind an enactment cannot be lost sight of whileinterpreting a provision of law. The object behind enactingRule 3A of Order 23 of the Code as already noted above, is toavoid multiplicity of suits and long litigation. In view of this, itgoes without saying that it may not at all be the legislativeintent to recognize two categories of unlawful grounds whichvitiate a compromise and include one category within theambit and scope of the word `unlciwful' occurring in Rule 3Aand exclude the other category altogether from its purview,thereby taking it out of the ambit of Rule 3A of Or.Xxlll andleaving a scope open for filing a separate suit to set aside acompromise decree. If the contention urged on behalf of theAppellants is accepted, the result would be that a separatesuit would still lie to set aside a compromise decree if it isvitiated by non-compliance of the provision contained in Or.Xxxll Rule 7(1)A. Such interpretation will, to say the least, bedevoid of the concept of purpose with which Rule 3A wasinserted in Or. 23 CPC., and will thus fail to redress the mischiefwhich was the objective behind the enactment. As has beenobserved by the Apex Court in -A/R J99J SC 735 a statute has to be construed in the light of the mischief it was designed toremedy. In Venkataswami Naidu R. vs. Naraswclmi Naraindas A/R J966 SC 36J of pcige 363, the Apex Court has laid downthe rule of interpretation in the following clear words :- `If a statutory provision is open lo more than one interpretcition the Courthcls to choose that interpretation whichrepresents the true inlention of thelegislature'.

S.irriilarly, +he Apex Coun .in union of lndl.a vs. Elphinstone

Spinning and Weaving Co. Lld. and Others repor+ec] .in AIR200J SC 724 P740 has thrown light on the correct approach tobe adopted by Courts for arriving at the correct legalmeaning that can be assigned to an enactment. It wasobserved that it is the cardinal principle of construction ofstatutes that the true or legal meaning of an enactment isderived by considering the meaning of the words used in theenactment in the light of any discernible purpose or objectwhich comprehends the mischief and its remedy to which theenactment is directed.

Thus construed in the light of the guidelines laiddown in the above cases, Rule 3A of Or. Xxlll CPC leave noscope for any conclusion that the words `not lawful' coveronly such cases which fall within the purview of Sec. 23 of the t:a-i Indian Contract Act and the bar would not operate in another cases. This demonstrates the fallacy of the abovecontentionraisedbyMr.Moulikandalsothereasonastowhyit cannot be accepted as sound.

76. ThenextsubmissionmadebyMr.Moulikisthat,the learned trial Court while passing the impugned orderdismissing the suit of the Plaintiff as being hit by Or. Xxm Rule3A of the Code, failed to take into account the case of thePlaintiff that the compromise was vitiated by undue influence,fraud and coercion and erroneously held that, as thechallenge to the compromise decree jn the present case wasnot on such ground, the observation made in AIR 1986Karnataka 1 that a suit to set aside compromise decreevitiated by fraud, undue influence and coercion etc., lies,would be of no assistance to the Plaintiffs/Appellants. Aperusal of the decision reported in A/R J986 Komatcko I fs. G.

Th/.ruappo v's. I. AnondaJ does go to show that it has beenobserved that a compromise decree can be challenged onthe ground that it was entered into or achieved by exercisingfraud, undue influence and coercion and it would not becorrect to say that a compromise decree cannot bechallenged on such grounds in view of Rule 3A. In his reply,'-``-. R. K. Agarwal, the learned Counsel for the Respondents E=

submitted that this judgment was of no assistance to theAppellantsasitwasperincuriaminviewofthepriorexistenceof a judgment of the coordinate bench of the same Hi.ghCourt repor+ed in AIR 1985 Karnafaka 270.

77. Aperusalof theabovej.udgmentdoesshowthata

coordinate Bench of the same High Court had held earlierthat a suit to question compromise decree on the grounds offraud or misrepresentation is barred by Or. Xxm Rule 3A andfiling an application u/S. 757 CPC was the only remedy anaggrieved party could take resort to. The Hon'ble SupremeCourt .in State of Bihar vs. Kalika Kuer alias Kali.ka Singh aOthers reported in (2003J 5 SCC 448 has held that an earlierdecision of a coordinate Bench of the same High Court isbinding on later coordinate Bench and the later coordinateBench must either follow it or refer the matter to larger Bench.(para 4 & 10). Since no such approach was adopted by thecoordinate Bench of the same High Court in the later decisionrendered in the above case reported in A/R J986 Kor. I, thedecision must be taken as per incuriam. It is a well-settledpn.nciple of law that decisions, which are per incuriam, do nothave the binding force of precedent (AIR 2004 SC 2317).Besides, it is now well settled after the law laid down by theHon`ble Supreme Court in Banwari Lal'scase (supra).that EE

nejtheranappealagainsttheorderrecordjngorrefusjngtorecordacompromisewouldlienoraremedybywayoffilingaseparatesuitisavajlablejnviewofRule3AofOrder23.78. Lastly, Mr. Mouljk submitted that the questionwhetherasuitismaintainableornotinvolvesmjxedquestionsof law and fact and such a question cannot be tried as apreliminary issue. It is, however, conceded by the learned Sr.Counselthatthepreliminaryissueinthecasewastakenupforhearing on the request of the learned Counsel for both sides.Admittedly, the present Plaintiffs/AppeHants participatedduring the hearing of the preliminary issue. In view of this, it isplajnthattheAppellantscannotnowbeallowedtore-agitatethe question.

J9. Therefore, it follows from the above discussion andthe observations made that the impugned order does notsuffer from any legal infirmity and consequently, the appeal isdevoid of merit.

ln the result, the Appeal is hereby dismissed.

In the circumstances of the case, there shall be no order as to cost.

forthwith.

Records of the lower Court may be returned ".faLoo6,J-291111299±