ORDER D.K. Seth, J.
1. It is alleged that the petitioners as plaintiff instituted a suit being Original Suit No. 460 of 1992 in the Court of Additional Chief City Magistrate, Vth Court, Kanpur Dehat, against opposite parties Nos. 3, 4, 5 and 6 as defendants, for specific performance of contract for sale executed by the opposite party No. 3 (defendant No. 1) in favour of the petitioners Nos. 1 and 2. It is alleged that the defendant No. 1 had executed sale-deed in respect of the selfsame property in favour of the opposite parties Nos. 2, 4, 5 and 6 respectively.
2. Sri K.K. Nirkhi, learned Counsel for the petitioners submit that a compromise was arrived at between the petitioners and respondent No. 3 and accordingly application for compromise was filed before the trial Court. The learned trial Court by an order dated 16-3-1994 had rejected the said application for compromise. Against the said order the petitioner have preferred revision being Civil Revision No. 74 of 1994. By an order dated 27-2-1998 passed by Vth Additional District Judge, Kanpur Nagar, the said revision was dismissed. Learned Counsel for the petitioners contends that he has challenged only this order dated 27-2-1998 without challenging the order dated 16-3-1994.
3. He contends that against the order refusing to record compromise an appeal lies. But Order 43, Rule 1 of the Code of Civil Procedure does not provide any such provision making an order under Order 23, Rule 3 of the Code, appealable. When such provision was pointed out to the learned Counsel for the petitioner he contends that it was not application for compromise but was an application for withdrawal of suit under Order 23, Rule 1 of the Code. He contends that since the defendant No. 1 had agreed to sell the suit property in favour of the petitioners outside the Court, therefore, he wanted to withdraw the suit by means of such application, which was dismissed. According to him this order under Order 23, Rule 1 of the Code is appealable. Then again Order 43, Rule 1 of the Code does not provide that an order under Order 23, Rule 1 of the Code is appealable.
4. Learned Counsel for the petitioner then was asked to show any provision under which an order passed under Order 23, Rule 1 or 3 refusing to allow the suit to be withdrawn or refusing to record compromise is appealable.
5. In the facts and circumstances of the case, it appears that the petitioner has not enclosed copy of the application either for withdrawal or for compromise, as the case may be, along with this writ petition to show the nature and character of the said application. He has also not enclosed copy of order dated 16-3-1994 passed by the learned Additional Chief City Magistrate, Vth Court, Kanpur Dehat. It is also not mentioned in the said order dated 27-2-1998 as to which has the place of seat of the said Additional Chief City Magistrate. The revisional order appears to have been passed by the Additional District Judge, Vth Court, Kanpur Nagar. It is not known how revision against the order passed by the Additional Chief City Magistrate, Vth Court, Kanpur Dehat, could be maintained before the Additional District Judge, at Kanpur Nagar. In absence of the order passed by the trial Court it is difficult to decide the said question. From the facts it appears that he may be City Magistrate of Kanpur Nagar. It is also not known as to how a suit could be instituted before the Additional Chief City Magistrate. It is also not known whether any judicial power to be exercised by a Civil Judge, was conferred on the City Magistrate. The writ petition appears to suffer from non-disclosure of material facts in order to enable this Court to enter into those questions. It appears that the petitioners have suppressed material facts while moving this petition and have not come with clean hands, which is one of the factor preventing such persons from invoking writ jurisdiction.
6. Then again from the facts and circumstances of the case it does not seem that the order is appealable on account of any of the provisions contained in the Code.
7. The orders passed in a civil suit have become appealable by virtue of Section 104 and Order 43 of the Code. Unless the orders are prescribed to have force of decree or such orders are treated to be deemed decree by reason of express provisions contained in the Code, no order other than those provided in Section 104 and Order 43 and those having the force of decree or is deemed decree by virtue of provisions contained in the Code are appealable. Section 104 deals with the order passed under various sections, as mentioned therein. Whereas Order 43 provides some orders passed under different Order mentioned therein, as being appealable. A reading of Order 43 discloses that within its compass Order 43 does not include order under Order 23, Rule 1 or Rule 3. Nothing in Order 23 prescribes that the order passed under Rules 1 and 3 thereof, has force of decree and none of the provisions contained in the Code of Civil Procedure renders an order under Order 23, Rule 1, refusing or to allow such an application or the order under Order 23, Rule 3 refusing to record compromise, has force of decree or is deemed decree. Though, however an order passed under Order 23, Rule 3 may be treated to be a decree but then again Section 96(3) prohibits appeal against the decree passed by the Court with the consent of the parties. Therefore, it is abundantly clear that the order passed under Order 23, Rule 1 or Order 23, Rule 3 are not appealable.
8. It is further alleged by the learned Counsel for the petitioners that he had also filed an application converting the revision into appeal which is Annexure-'I' to the writ petition. It is alleged by the learned Counsel for the petitioners that the said application has not been decided before deciding the revision and the said application dated 17-2-1998 is still pending. According to him only on this ground the order dated 27th February, 1998 should be set aside.
9. But the facts remained that the revisional Court has entered into merit of the case and found that the defendant No. 1 was alleged to have agreed to sell the suit property in favour of the petitioners and that despite having notice of such agreement the defendants Nos. 2 to 5 have purchased the suit property from defendant No. 1 but the defendants Nos. 2 to 5 had opposed the same to the extent that they do not have any notice to the said agreement and that they are bona fide purchasers without notice.
10. The plaintiff-petitioner and the defendant No. 1 had executed an agreement between themselves after institution of the suit to the extent that the defendant No. 1 has agreed to execute a deed of sale in favour of the plaintiff-petitioner in respect of the suit property and that the defendant No. 1 had never executed any sale-deed in respect of suit property in favour of defendants Nos. 2 to 5. Therefore, on the basis of such agreement between defendant No. 1 and the plaintiff the application was made that the suit be decreed in terms of the said agreement directing the defendant No. 1 to execute sale-deed in respect of the suit property in favour of the plaintiff-petitioner.
11. On the basis of above finding of fact, learned revisional Court had observed that since the defendants Nos. 2 to 5 had alleged that they were bona fide purchasers without notice and had been contesting the suit in such circumstances, no decree directing the defendant No. 1 to execute sale-deed in respect of suit property in favour of plaintiff-petitioner could be passed on the basis of alleged compromise and the agreement between the plaintiff-petitioner and the defendant No. 1. It is further observed that unless the claim of defendants Nos. 2 to 5, as pleaded in their written statement, is examined and conclusion is arrived at no decree can be passed on the basis of agreement between the plaintiff and the defendant No. 1. In such circumstances the revisional Court had held that the order passed by the learned trial Court was justified and, therefore, affirmed the said order.
12. It may be noted from the above order that the application which is sought to be described as an application under Order 23, Rule 1 of the Code by the learned Counsel for the petitioner was in-effect an application for compromise under Order 23, Rule 3 of the Code. Inasmuch under Order 23, Rule 1 there cannot be any decree directing defendant No. 1 to execute sale-deed. Order 23, Rule 1 postulate only withdrawal of the suit and if the suit is withdrawn without leave of the Court, in that event by reason of Sub-rule (4) of Rule 1 of Order 23 the plaintiff is precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The observation of the revisional Court indicates that the plaintiff did not pray for withdrawal of the suit with or without leave for instituting fresh suit. On the other hand the plaintiff had prayed for a decree in terms of compromise between the plaintiff and defendant No. 1, by virtue whereof the defendant No. 1 had agreed to execute deed of sale in favour of the plaintiff. Therefore, by virtue of such lawful agreement or compromise in writing signed by the parties the plaintiff and the defendant No. 1 wanted the Court to be satisfied for recording compromise and pass decree in accordance therewith. Thus the application that was made appears to be an application under Order 23, Rule 3 for which the defendants Nos. 2, 3, 4 and 5 did not subscribe and had been claiming a right contrary thereto. Whether the defendants Nos. 2 to 5 were bona fide purchasers without notice or whether the defendant No. 1 had at all executed such deed of sale in favour of defendants 2 to 5 are questions to be gone into in the suit when on the pleading the right of defendants Nos. 2 to 5 are in existence by virtue of the allegations made in the plaint itself that the defendants Nos. 2 to 5 were the subsequent purchasers with notice to the agreement for sale. In such circumstances no order recording compromise could at all be passed.
13. Order 23, Rule 3 of the Code requires the Court to satisfy itself about the compromise. In order to arrive at such a satisfaction it has to examine whether the suit has been adjusted wholly or in part or that the defendants satisfies the plaintiff in respect of whole or any part of subject-matter of the suit. It has to examine whether such an adjustment or the claim of the plaintiff or satisfaction of the plaintiff was through unlawful agreement or not. Such agreement or compromise is to be in writing. Such writing is to be signed by both the parties. Only when all these conditions are satisfied it is incumbent on the Court to record the compromise.
14. In order to decide such question the Court has to refer to the pleadings and has to address itself to the claims and counter-claim between the parties. It cannot ignore the claim of the defendants. The proviso to Rule 3 provides denial of adjustment or satisfaction arrived at between the parties. If there is any denial the Court has to decide such questions. In the present case the defendants Nos. 2 to 5 were not parties to the compromise and they had objected to the adjustment between the parties. In such circumstances it is incumbent on the Court to enter into such question and decide the same. In the present case such question having been decided by both the Courts below, which is well within their jurisdiction, it cannot be said that there was any infirmity in the orders or irregularity which can be corrected.
15. The main ground on which the entire thrust of the argument of the learned Counsel for the petitioners was laid was that the revisional Court had decided the revision without disposing of the petitioner's application for converting revision into appeal. He had sought to derive additional support from the observations made in the order by the appellate Court to the extent that the plaintiff should have filed appeal instead of revision. The said observation had been capitalized by the learned counsel for the petitioner that the appeal Court itself had come to a finding that the revision was not maintainable and appeal was maintainable. According to him since the revisional Court had come to a finding that the order was appealable therefore, revision being not maintainable, the orders impugned is void ab initio and non est. Then again revision could not have been dismissed or decided without disposing of the plaintiff's application for conversion.
16. It appears that the application for conversion of revision into appeal was filed on 17-2-1998 whereas revision was decided on 27-2-1998. Be that as it may, the contention of the learned Counsel for the petitioners cannot be sustained on two grounds.
17. The first ground is that the revisional Court did not dismiss the revision only on the ground that appeal is maintainable but had dismissed the same on merits having regard to the facts and circumstances of the case though it had in one line had so observed that the order was appealable. The main factor which led the revisional Court to dismiss the revision was on the merit of the case itself. The expression that appeal was maintainable against the order, appears to be too casual,
18. The second ground is that in the present case the order being revisable and not being appealable, application for conversion of revision into appeal is wholly misconceived. Even if it is not decided it is too technical a ground since on the face of it, it would suffer the same fate namely 'to be dismissed'. Therefore, consideration of such application would again be futile and in such circumstances having regard to the observations made earlier the non-disposal of the said application would in no way affect the outcome or the order that would have been passed.
19. When such questions come up before the Court it is the duty of the Court to look into the impact of the situation. If on such technical ground the order is recalled when on the face of it, it appears that the same order would have" been passed on merits even in the appeal in that event the order if reversed purely on technical ground it would only be a futile exercise which the Court should avoid. But the Court has to come to such a conclusion on the basis of each individual case and circumstances of a particular case and it should satisfy itself that even if it was treated to be an appeal and orders passed appears to have been sufficient for disposal of the appeal on merits of the case.
20. The procedures are handmaids of justice. Justice cannot be imprisoned within the rigours of technicalities of the procedure. It is to be examined by the Court as to whether any useful purpose would be served if the technicalities are adhered to or it is non-adherance in any way affect the result of further proceeding or rights of the parties. If it does not in that event such technical mistake or it can be said irregularity are to be ignored. The non-disposal of the application would be said to be an irregularity. Unless such irregularities are held to be material it would not warrant interference in the order. Such irregularity would be material in the sense if it has any impact or it affects the rights of the parties in any manner. If it does not, in that event it is not material irregularity. In the present case, as discussed earlier the irregularity alleged does not affect either of the parties and as such is not material irregularity and therefore the same is to be ignored.
21. For the reasons stated above I am not inclined to interfere with the impugned orders. The writ petition therefore fails and is accordingly dismissed. There will however, be no order as to costs.