Report No. 27

Order XLIII, rule 1

Since an express provision regarding restoration of orders dismissing for default an application under Order XXI, or for setting aside of ex parte orders on such applications is proposed1, it is considered that an express provision allowing appeal from such orders should be inserted. In drafting the amendments, assistance has been taken from the Madras Amendment, Order XLIII, rule 1, clause (JJ).

2. As a new rule regarding breach of injunctions is being inserted2, a provision making orders punishing such breach appealable is being inserted.

3. Clause (u)-The change in clause (u) is consequential3.

1. See Order 21, rules 104 and 105 (proposed).

2. Order 39, rule 2A (proposed).

3. See Order 41, rule 23A (proposed).

Order XL111, rule 1(m)

There are certain points on which there is some conflict or uncertainty as to clause (m) of Order 43, rule 1, which allows an appeal from order "recording or refusing to record an agreement, compromise or satisfaction". These points are as follows:-

(i) Does an appeal lie where the order is followed by a consent decree? One view is that no appeal lies1 in such cases, the reason being that once a compromise decree is passed, all previous orders merge in it. While the decree is outstanding, it is stated, the person affected cannot adopt "a short and inexpensive cut" and appeal against the order. But, as against this, a contrary view is, that the order is appealable irrespective of whether a consent decree follows it or not2-3-4 since the rule contains no limitation.

(ii) Is the right of appeal available in all cases, or is it available only where the order was passed aftercontest? One view is, that it is available in all cases5-6, while another view is that is not available where there was no contest in the lower court7, (about the compromise). The latter view is based on the reasoning that if there was no contest, there would be no materials before the court on which to come to a decision. But the former view supports itself on the ground that two questions, namely (i) which order is appealable, and (ii) whether the appeal is likely to succeed, should be kept separate.

(iii) Is the right of appeal confined to cases where the order refusing to record the compromise was based on the ground that the compromise was not valid in law, or does it extend to cases where there is a dispute about the factum of the compromise? One view is, that an order holding that no compromise has been proved is not appealable8, the reasoning being, that where the court refuses to record the compromise, it is not an order "under rule 3", because that rule presupposes the existence of an agreement, compromise or satisfaction. But in some cases9, an appeal on facts was allowed10.

It is, however, considered unnecessary to make any amendment on these points in the rule, as it is felt that the existing language, which is based on the wording of Order XXIII, rule 1, need not be disturbed.

1. Onkar v. Gamna Lakka, AIR 1933 Born 205 (Murphy and Nanavati JJ.).

2. Mathura Prasad v. Parmanand, AIR 1960 MP 161 (reviews case-law).

3. Haridas v. Ishwar, AIR 1933 Cal 94, following AIR 1929 Cal 689 (FB).

4. Ram Narayan v. Ramakrishna, AIR 1936 Mad 385.

5. Ram Narayan v. Ramakrishna, AIR 1936 Mad 385 (Wadsworth J.)

6. Suraparaju v. Venkatarathmiah, AIR 1936 Mad 347 (Wadsworth J.)

7. Amar Nath v. Malan, AIR 1954 Punj 259.

8. Shanti Sarup v. Firm Jahangir Mal, AIR 1924 Lah 248 (Martineau J.).

9. AIR 1933 Cal 94.

10. In Nand Lal v. Ram Sarup, AIR 1927 Lah 546 (548), left (Addison and Agha Haidar JJ.), the view taken in AIR 1924 Lah 248 was cited, but appears to have been not accepted.

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