Karnataka High Court
A.B Surya vs C. Sathyanarayana on 14 August, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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NC: 2024:KHC:32716-DB
RFA No. 699 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 699 OF 2015 (PAR)
BETWEEN:
A.B SURYA
SON OF LATE A.M. BALAPPA,
AGED ABOUT 76 YEARS,
NO.209, BYRASANDRA,
1ST BLOCK, JAYANAGAR EAST,
BENGALURU - 560011.
PRESENTLY RESIDING AT
FLAT NO.005, GOLDEN NEST APARTMENTS,
G.D. STREET, ADUGODI
BENGALURU - 560 030.
...APPELLANT
(BY SRI K. N. VENKATESH, ADVOCATE)
Digitally signed AND:
by SHILPA R
TENIHALLI
C. SATHYANARAYANA
Location: HIGH
COURT OF SON OF LATE CHIKKAMUNIAVALAPPA,
KARNATAKA AGED ABOUT 57 YEARS,
RESIDENT OF NO. 6,
2ND MAIN ROAD, ADUGODI
BENGALURU - 560 030.
...RESPONDENT
(BY SRI M. J. ALVA, ADVOCATE )
THIS RFA IS FILED UNDER SEC. 96 OF CPC R/W ORDER
41 RULE 1 OF CPC., AGAINST THE ORDER DATED 07.02.2015
PASSED IN FDP NO. 114/2008 ON THE FILE OF THE PRL. CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE
FINAL DECREE PETITION.
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RFA No. 699 of 2015
THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS
DAY, RAMACHANDRA D. HUDDAR J.,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT
and
HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) Appellant being aggrieved by the order of direction dated 7.2.2015 in FDP No.114/2008 by the X Addl. City, Civil and Sessions Judge, Bengaluru City CCH-26 to draw final decree, has preferred this appeal. Parties to this appeal are referred to as per their rank before the FDP Court i.e. appellant was respondent and respondent was petitioner before the said Court for the purpose of convenience.
Brief facts of the Appellant case are as under:
2. There was an illegal compromise entered by the petitioner with the present Appellant-defendant No.1 in OS -3- NC: 2024:KHC:32716-DB RFA No. 699 of 2015 No. 6908/2000 before the trial Court on 18.10.2001.
According to the Appellant, the said compromise decree is the outcome of fraud, misrepresentation, and without the knowledge of the appellant. According to him, the present respondent in this appeal is the only son of the 3rd elder brother of the appellant. Already there was a partition in the year 1951 between the father of the Appellant and his three brothers. But, even then, the present Respondent in this appeal filed suit in OS No. 6908/2000 on the file of X Addl. City, Civil and Sessions Judge, Bengaluru City, seeking partition in the schedule property so mentioned therein against the Appellant and five others who were totally different persons. The said suit was filed on 12.10.2000. It is alleged by the plaintiff that, in the said suit, he filed a written statement and contested the suit. But, however, the respondent, being the plaintiff in the said suit, hatched a cunning plan to get some portion of the property of this appellant by playing fraud on him on the guise of withdrawing the partition suit and asked the appellant to sign the papers by stating that he was going -4- NC: 2024:KHC:32716-DB RFA No. 699 of 2015 to withdraw the suit. He took the signature of the Appellant. It is alleged that, in good faith, by trusting the Respondent, he put his signature. He is an illiterate person unable to read and write English. By playing fraud upon the appellant, the said papers were presented before the trial Court fraudulently and got a compromise decree in his favor, falsely mentioning that the appellant agreed to give 1510 sq. ft. of super-built-up area in the first and second floors of the commercial complex 'CITADEL', which is described as item No. 1 of Schedule property in the said suit.
3. It is further stated that the respondent filed an execution petition in EP No. 673/2003 during 2003 before the City Civil Court and sought delivery of said 1510 sq. ft. The appellant was shocked to know that the respondent played fraud on him and got a compromise decree in his favor. The respondent filed a memo before the City Civil Court in the said suit on 18.10.2001 and prayed to dismiss the suit against defendant nos. 2 to 6. In the said memo, -5- NC: 2024:KHC:32716-DB RFA No. 699 of 2015 it is stated that the said defendant nos. 2 to 4 had no right or possession over the schedule properties. Though defendant no. 2, the father of the respondent, has no right and possession over the schedule properties mentioned in the said suit, the plaintiff got a compromise decree in his favor.
4. Being aggrieved by the respondent's illegal behavior, the appellant filed an application in the said matter before the City Civil Court under Order 23 Rule 3 of CPC to set aside the compromise decree alleging fraud on him by the respondent-plaintiff in the said suit in the shape of I.A.No.2/2009. But the Court ultimately rejected his application. Additionally, he filed an application in I.A.1/2014 requesting the dismissal of the suit on the grounds that the compromise decree passed in OS No.6908/2000, dated 18.10.2001, was illegal. The appellant and defendant no. 1 in the aforementioned suit make a grave assert, claiming that the agreement in question is completely illegal and invalid in the eyes of -6- NC: 2024:KHC:32716-DB RFA No. 699 of 2015 law. It is the result of deception and deceit. It is said that in order to write the final decree, the trial Court recently issued an order that is contested in this appeal. Based on the commissioner's report, the aforementioned order was passed. Even the commissioner's report is unlawful. The trial Court passed the contested order in reliance on the aforementioned false decree. The appellant requests that the contested order be set aside that the suit/FDP be dismissed.
5. The appellant filed a number of interim applications before both this Court and the trial Court, according to the records of this appeal. "Fraud and misrepresentation have been committed by the respondent herein (plaintiff) in the said suit," is the recurrent accusation in all the petitions. He thus begs that this appeal be allowed.
6. Pursuant to the notice, the respondent appeared before this Court. The trial Court records are -7- NC: 2024:KHC:32716-DB RFA No. 699 of 2015 secured. We have heard the arguments of learned counsel for the appellant, Dr. K.N. Venkatesh, and learned Sri M.J. Alva for the respondent and perused the records.
7. The Appellant's learned counsel vehemently contends that the respondent got the compromise order through fraudulent and deceptive means, constituting an obvious deception and an illegal acquisition of the judgment. He claims that on behalf of the appellant, he has filed numerous applications before this court as well as the trial Court, laying out an argument for the aforementioned compromise order to be thrown aside on the grounds of fraud. He contends that the respondent even dared to register complaints against the appellant's counsel as a result of the barrage of applications. There were open criminal cases against him. He argues that in order to preserve the interests of the parties, the parties to the civil suit have the power and right to make interim petitions in both the suit and the appeal under the Civil Procedure Code. According to him, the contempt -8- NC: 2024:KHC:32716-DB RFA No. 699 of 2015 proceedings were brought against him because of the bogus accusations made against the appellant's counsel. He claims that the respondent's actions amply demonstrate that the respondent never approached the court in a clean manner. Despite not being entitled, the appellant has filed a suit seeking partition in order to take back his property. The fake compromise decree was obtained against the appellant through the filing of a fictitious suit. Additionally, he argues that the compromise decree in question is subject to nullification due to the respondent's actions, as detailed in the appeal memo and the numerous applications filed both with the trial Court and this Court. As a result, the respondent-plaintiff's suit must be dismissed. He goes on to say that the learned trial Court made a serious and obvious mistake by ordering to prepare the final decree. In light of this, he allows to grant this appeal.
8. The respondent's counsel refutes this claim by citing the timeline of events from the time the suit was -9- NC: 2024:KHC:32716-DB RFA No. 699 of 2015 instituted in OS No. 6908/2000. The respondent claims that the appellant has requested two different types of relief, including the dismissal of the suit and the setting aside of the final decree and compromise decree. He claimed that the appellant had filed numerous interim applications with the trial Court as soon as the compromise decree was passed. Feeling offended by the interim orders, he then filed numerous Writ Petitions, MFAs, Civil Revision Petitions, and contempt petitions. Every step of those procedures worked against the petitioner. His claims of fraud and deception against the respondent stem from his dissatisfaction with the aforementioned setback. He claims that on 12.10.2000, the City Civil Court received a suit in OS No. 6908/2000, which sought partition relief against the current appellant and five other parties. The suit resulted in a compromise, according to which a preliminary decree was passed, allocating 1510 square feet of super-built-up space in the building, which was still under construction and located on the property included in the suit schedule.
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9. He claims that the renowned counsel who authored the compromise petition for the Appellant in the aforementioned suit represented the Appellant. He has voluntarily signed the petition for compromise. That led to the passing of a compromise decree. The Respondent, who is the decree holder, has filed the final decree process in order to draw the final decree. The property was transferred to the decree holder as specified in the preliminary decree by the learned final decree Court through the appointment of a court commissioner. The aforementioned final decree is also registered. The final decree court accepted the commissioner's findings and directed that the final decree be drawn. The appellant even attempted to strike aside the aforementioned compromise decree by filing an application under Order 23 Rule 3A of the CPC, but it was unsuccessful. He argues that neither this Court nor the trial Court have found any evidence to support any of the accusations of fraud or misrepresentation. The Appellant has continued to make baseless, unsupportable claims devoid of any substance.
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 Referencing the different interim orders issued by the trial Court, this Court, and other writ petitions, CRPs, and MFAs, together with the trial court's interim orders, he argues that the assertions presented in the lengthy appeal document lack merit. He requests that the appeal be dismissed with costs because he believes the appeal is not viable in its current form.
10. We have given our anxious consideration to the facts of the case and to the arguments of both the side. Meticulously perused the records.
11. In view of the rival submissions and an reading of the records of this appeal and the trial Court records, the following point arise for our consideration:
i) Whether the impugned order passed by the FD Court directing to draw the final decree suffers from any factual or legal error and hence, requires interference by this Court?
12. Prior to discussing the various facets of the case, let us examine the timeline of events that began
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 on 12.10.2000, when the City Civil Court received the suit under OS No. 6908/2000.
13. The respondent-plaintiff filed the aforementioned suit against the appellant and five other parties in an attempt to get a partition decree and separate possession of his portion of the schedule properties as stated in the plaint. By filing a compromise petition on 18.10.2001, the plaintiff and defendant in the aforementioned suit came to an agreement. The respondent-plaintiff was granted 1510 square feet of super-built-up area in the building that was being built on the scheduled properties in the aforementioned compromise petition. The said suit was dismissed against defendant nos. 2 to 6 therein. In order to gain possession of the property by virtue of the preliminary decree, the respondent then filed Execution Petition No.673/2003, which was later withdrawn. Subsequently, on 30.09.2008, the respondent filed FDP No. 114/2008, seeking the court of final decree to draw the final decree by defining his property in accordance
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 with the preliminary decree passed in the suit. The appellant's daughters filed a suit in OS NO.609/2002 before the trial court, contesting the compromise decree. The suit was dismissed on 13.10.2003. Being aggrieved by the same, CRP No. 766 of 2003 and MFA No. 4690/2003 were filed before this Court, which are also dismissed on merits. Even the daughters of the appellant filed OS No. 7789/2002 seeking partition, which also came to be dismissed on 2.4.2008. It was challenged in RFA No. 1266/2008, and it was admitted on 5.8.2010.
14. According to the appeal's records, the appellant has not yet contested the decision in OS No. 6908/2000, dated 18.01.2001. Daughters even submitted a third-party application to be included in the final decree proceedings, but it was denied on 9.11.2009, by imposing cost on them. The appellant objected to the aforementioned final decree proceeding, but it was denied and assessed costs. In order to draw a boundary around the land given to the respondent-plaintiff's share, the final decree court
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 designated Additional Commissioner BBMP as a Commissioner. The warrant was returned by the Commissioner due to some technical issues. In the end, the court commissioner marked the property by visiting it. Submitted a report to that effect. The learned trial Court instructed the office to draft the final decree based on the aforementioned report, according to the records. As a result, a final decree is drafted and then registered. The appellant is currently contesting the FDP Court's decision.
15. The appellant has never contested any of these chronologies of events. He regrets that the Respondent- plaintiff forced the appellant to sign documents under the pretense of withdrawing the suit in OS 6908/2000. He signed with good intentions. He cannot read or write in the English language since he is illiterate. He got the preliminary decree by deceiving the appellant and filing a frivolous and fraudulent compromise petition without providing a justification for its contents. Appellant has
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 therefore leveled several accusations against the respondent.
16. According to the trial court records, on October 18, 2010, a compromise petition was filed. It was signed by the defendant and plaintiff on each page, as well as by the corresponding counsel for plaintiff and defendant No.
1. The counsel for the respondent submits that the compromise petition was written by his colleague, and that the senior most eminent advocate was defending defendant no. 1. Both the plaintiff and the defendant signed the compromise petition in front of their respective counsel by acknowledging its contents. Their counsels also signed the documents. Upon reviewing the aforementioned compromise petition, it is observed that, it is signed by Plaintiff No. 1 and each of their separate counsel in the aforementioned OS No. 6908/2000. The appellant does not deny that he signed the aforementioned compromise petition. The trial Court drew a preliminary decree based on that. The present Appellant in the aforementioned
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 case filed IA No.1/2014 in 2014 under Order 23 Rule 3 read with Section 151 of CPC to set aside the compromise order made in the suit dated 18.10.2001 on the grounds that the plaintiff there had deceived him. The Respondent- defendant no. 1 filed thorough objections to the aforementioned application. The application was dismissed by the learned trial Court through orders dated 3.12.2015. Following that, a number of applications were submitted, according to the order sheet for the aforementioned disputes, and the appellant challenged the interim orders before this Court, arguing that they were the same as the orders made by the FDP court in I.A.14, dated 5.12.2014. On 19.03.2014, this Court dismissed Writ Petition No. 11314/2014 (GM-CPC). Even the appellant filed WP Nos. 56491-92/2013 before this Court in an attempt to contest the decisions appointing the commissioner. This Court dismissed the aforementioned writ petitions through orders dated 16.1.2014.
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17. The appellant subsequently filed an application on 16.09.2014, under Order 23 Rule 3 read with Section 151 of the CPC, contesting the aforementioned compromise decree. The trial Court dismissed the aforementioned application on contest by order dated 03.12.2015. The appellant challenged the compromise decree dated 18.10.2001 by submitting the aforementioned application in I.A. No. 1/2014. He claimed that fraud had been committed against him during the process of getting signatures on the compromise petition. He also related the story of the previous partition that was made between his father and other people. The trial court has brought up the issue of whether or not to grant the aforementioned interim application. In response, the trial court dismissed the appellant's I.A. No.1/2014, despite the Appellant being the first defendant in the matter, and held that the compromise decree dated 18.10.2001 is a valid compromise decree. Despite being offended by this, there is no documentation indicating that he has filed an appeal in accordance with Order 43 Rule 1(u) of CPC. After then,
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 he submitted a number of applications, all of which the trial court rejected. In the end, the trial Court issued an order designating the BBMP Commissioner as the Court Commissioner in order to draw a boundary around the property that was granted to the Respondent-plaintiff and transfer ownership of it. As a result, the commissioner marked the property's boundaries and followed the trial Court's instructions by submitting a report to that effect. Based on it, the trial Court issued an order requiring the appropriate duties to be collected before drawing the final partition judgment in accordance with Order 20 Rule 18 of the CPC. As a result, after collecting the necessary duties, the office had drawn the final decree. According to the records maintained by the parties, the final decree issued under Order 20 Rule 18 of the CPC was registered on April 17, 2020. As a result, the final decree is drawn and registered in accordance with the documents filed. A sketch that was an integral part of the final decree is attached to the aforementioned decree.
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18. The case records further show that the appellant filed Writ Petition No. 11314/2014(GM-CPC) before this Court, citing grievances over orders made on I.A. No. 14 dated 05.12.2014 in FDP No.114/2008. The Single Bench of this Court dismissed the writ petition in question on 19.03.2014, and directed the second Commissioner to visit the location on 20.02.2014, at 11:00 a.m., in order to execute the warrant. The parties were also instructed to be present at the location. Following the aforementioned directives in Paragraph No. 3 of the ruling, it is observed as under:
"Looking to the material on record, the petitioner wants to somehow drag on the proceedings in order to see that the respondent does not get the fruits of the decree. The objections were filed by the petitioner to the FDP and sought for dropping the FDP. The Court below by the order dated 3.12.2009 rejected the statement of objections with costs of Rs.3,000/- and thereafter appointed the Court Commissioner to deliver possession of the suit property. Thereafter I.A. No.10 was filed by the petitioner
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 once again for dismissal of the Final Decree Proceedings on the ground that the decree in question is obtained by playing fraud and that one of the parties to the suit died prior to compromise decree. The said I.A. also came to be dismissed by imposing costs of Rs.3,000/-. The present application I.A. No.14 is to dismiss the FDP as not maintainable. The same is also rightly rejected by the Court below."
19. The appellant herein was not satisfied with the same and moved the High Court by filing a series of writ petitions challenging the orders of the trial Court. All the proceedings so initiated by him went against him. With regard to the appointment of the Commissioner in the said FDP, the appellant herein filed WP Nos. 56491-92 of 2013 (GM-CPC) before the Single Bench of this Court. The said Writ Petitions came to be disposed of on 16.01.2014 with a direction to the second Commissioner to visit the spot on 20.02.2014 and execute the warrant. Thus, though the appellant has made allegations of fraud, misrepresentation, etc., all the assertions and allegations were negatived by the FDP Court.
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20. The learned counsel for the appellant has taken a vague contention in Para. 15 of the appeal memo that there is fraud, fabrication, etc. He admits that the appellant has moved an application under Order 23 Rule 3A read with Section 151 of CPC for voiding the decree in question, and the same has been dismissed by the Court. He submits that the final decree has been drawn and demarcation has been done of the property, which belongs to the third party, namely, Mr. Narayanswamy, who was not included in the final decree. According to him, the decree is time-barred and cannot be enforced in any way, either in FDP or otherwise, as the compromise decree itself is vitiated by fraud.
21. In support of his submission he cited a judgment of the Apex Court in the case of Bimal Kumar v. Shakuntala Debi1 so also this Court reiterating the same view in the case of Mahadev Talawar v. Irappa 1 (2012) 3 SCC 548
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 Hatti2, wherein, it is held by one of us (KSDJ) that a compromise decree when put into execution and where two years have lapsed, no recourse to execution having been taken, it lapses by delay. On reading the said judgment of this Court, the facts of the instant case are quite different than the facts of the said case, therefore, it cannot be justifiably applicable to the facts of present case.
22. Sri M.J. Alva, the learned counsel representing the respondent, fervently contends that the very distinguished Advocates were involved in the compromise process and that the compromise petition was painstakingly written on 18.10.2001. A compromise decree was drafted based on the aforementioned compromise petition. Sri Alva notifies this Court that the trial Court, which made the relevant decree, denied the appellant's application on 3.12.2015, under Order 23 Rule 3A read with Section 151 of the CPC. Even the additional 2 (2018) 5 KCCR 618
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 applications that were submitted to the FDP Court were turned down. He claims that the aforementioned FDP was deemed maintainable because the property was not specified. It is his submission that, the judgment and decree of compromise petition was Valid after taking into account the arguments made at the bar and taking note of the evidence that was submitted. According to his argument, the aforementioned dismissal judgment is appealable under Section 104 read with order 43 Rule 1(u) of the CPC if the appellant-defendant No. 1 has received it. Therefore, he contends that notwithstanding the Co- Ordinate Bench's order dated 03.12.2015, the appellant- defendant No. 1 was required to file a separate appeal by citing the aforementioned provisions of CPC. The appointment of the Commissioner was put in challenge by the appellant, and that also came to be dismissed.
23. The learned counsel for the Appellant-defendant No.1 passionately submits that his father was a freedom fighter and he was given encomia by the President of
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 India, and also the Governor has visited his house. The counsel for the appellant having a good reputation was whisked away at the instance of the plaintiff-respondent No.1 by bringing several police people. Even against the counsel for the appellant, the police have opened a rowdy sheet. He submits that his father has obtained a stay order at the hands of this Court in WP No.13470/2021. The writ petition is still pending. He further submits that, in all, seven years were snatched by the respondents at the hands of the Upalokayukta by making several false allegations against the counsel for the appellant. He submits that some other property belonging to third party is included in the decree. It is his submission that the property itself has been changed by fraudulent means by the respondent No.1. Even in Execution Petition No. 1337/2015, a delivery warrant was issued. The obstructers' application was also dismissed by the Execution Court. Several documents in thick-booklet are produced before this Court on 19.06.2024 for bringing to the notice of this Court the related circumstances and
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 orders and the proceedings arising from the subject final decree. He submits that the final decree needs to be set aside as it is drawn without effecting the partition by metes and bounds.
24. It is his further submission that he had no opportunity to cross-examine the Court Commissioner as the appellant's counsel was registered as a rowdy sheeter. According to him, there is a violation of principles of natural justice. He also took us to the contents of the appeal memo as well as several judgments furnished in a docket.
25. The events listed above particularly refer to the timeline of events that have occurred during the trial proceedings, starting with the plaintiff's filing of a civil suit and ending with the drawing of a final decree.
26. According to a clear reading of Order 23 Rule 3 of the CPC, it is a well-established legal principle that no suit may be filed to overturn a decree on the grounds that
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 the agreement upon which it was founded was illegal. A manifestly void or voidable agreement or compromise will not be considered lawful, and the bar under Rule 3(A) will be invoked if the compromise was void or voidable and served as the foundation for the decree's passing. The consent decree is founded on compromise. A separate litigation contesting the consent decree is not viable in light of the 1976 amendment to the Civil Procedure Code. In order to dispute the compromise decree on the grounds that it was not lawful, i.e., it was void or voidable, one must approach the same Court that recorded the compromise. The aforementioned provision was added by Act 104 of 1976, which also added Rule 3A.
27. The courts have observed that parties who have submitted compromise petitions, which serve as the foundation for preparing decrees, frequently contest the legitimacy of these compromises. To set aside such decrees, suits used to be filed, which dragged on for years, including appeals to different Courts. Keeping in
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 mind the above situation, the legislature has inserted rule 3A in Order 23 of the CPC. By submitting an interim application under Order 23 Rule 3 read with Section 151 of the CPC, the appellant in this case attempted to challenge the aforementioned compromise decree, but it was denied. Despite being dissatisfied with the situation, appellant- defendant No. 1 has not initiated any actions as required by Order 43 Rule 1(u) of the CPC.
28. Now the final decree is challenged by defendant No. 1--the appellant. As per the definition of a definition of a final decree, "a final decree is one that completely disposes of the suit and finally settles all the questions in controversy between the parties, and nothing further remains to be decided thereafter." A preliminary decree in a partition suit merely determines and declares the rights of the parties to properties and the extent to which they are entitled. But it is the final decree which ultimately divides the properties by metes and bounds and awards separate possession of the properties to the claimants.
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 The final decree's purpose is to reiterate and implement the directives made in the preliminary decree. Thus, a preliminary decree governs and serves as the foundation for a final decree. There are no executable decrees until a final decree is passed, according to established legal doctrine, which states that final decree processes constitute a continuation of preliminary decree proceedings. The preliminary decree that was previously issued in a suit to ascertain and declare the rights and interests of the parties to the suit is the source of the final decree rather than the original. The final decree in a suit is not a decree in the execution of a preliminary decree. It is an ultimatum that needs to be followed. (CPC, Thakker, CK, Vol.4 2009 Edition Eastern Book Company, Lucknow, Page 320.).
29. In Guran Ditta, L. v. T.R. Ditta, reported in AIR 1935 PC 12, their Lordship observed that, "final decree neither relates to substantive rights of the parties nor decides or declares title to the property or shares of
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 the parties to the partition suit and till the final decree is passed, there is no executable decree as envisaged by order 20 Rule 18 of CPC". The Hon'ble Supreme Court in Muthangi Ayyanna v. Muthangi Jaggarao3, has held that "a final decree cannot go behind, amend, or alter preliminary decree". If these principles are applied to the present facts of the case, the learned trial Court has already passed the final decree and it is registered. The appellant has not invoked the provisions of Order 41 Rule 1(u) of CPC by preferring appeal to nullify the said decree of the trial Court. He challenged the said order with a prayer to draw the final decree by filing an interim application, which came to be dismissed. In view of the facts brought on records, the present appeal is nothing but an attempt to re-litigate which is not permissible under law. When earlier application of the appellant was dismissed on merits, though it is submitted that under common law the appellant can seek for setting aside the 3 (1977) 1 SCC 241
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 judgment and decree, but in view of the developments that have taken place, definitely, the doctrine of constructive res-judicata can be operated against the appellant-defendant No.1 as he cannot challenge the said drawing up of final decree again by filing this appeal. Even because of the conduct of the appellant, the principle of estoppel also applies to him.
30. Despite the fact that the appellant-defendant No. 1's learned counsel based his submissions on allegations of fraud, misrepresentation, etc., this Court is unable to find any factual basis for the allegation of fraud for the straightforward reason that the distinguished Advocates actively participated in the compromise process, drafted the compromise petition, and the appellant-defendant No. 1 signed it willingly without being coerced or threatened. He acknowledges signing the same document. Several objections were raised by the appellant, alleging fraud, misrepresentation, etc., but the preliminary decree refers to the declaration of share to the
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 plaintiff to the extent of 1510 square feet as demarcated by the Commissioner, and accordingly, the Commissioner's warrant was executed. That means the said issue is with regard to the finally decided allotment of the properties, and the properties are divided by metes and bounds. In view of all these factual aspects, the claim of appellant- defendant No. 1 definitely attracts the doctrine of constructive res judicata. The appellant-defendant No. 1 can no longer raise such an issue by filing this appeal, alleging that the said preliminary decree so passed is not binding on him as an already final decree is drawn. At this point, accepting the appellant's plea would result in never- ending litigation and unfavorable outcomes, which is against established legal and public policy principles. Despite the appellant's request for a declaration of the decree's nullity due to fraud, he has utterly failed to provide enough evidence to render the decree invalid. In accordance with the norms of the Code of Civil Procedure, the trial court dismissed his plea of fraud, which is not contested by filing the proper appeal. Even if the
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 appellant's counsel cited a number of rulings, given the information presented in the record, it is not reasonable to apply those rulings to the facts of his case. The Indian courts have distinguished between fraud committed against a party and fraud committed against a court where the appellant alleges fraud. According to established precedent, in cases where the question is whether permission was obtained through deception, the courts have the authority to look into the situation through a duly filed motion and to set aside the decree if they find that the consent was not actually given by the parties. However, in cases where consent has been obtained--that is, in situations where the parties have acknowledged filing a compromise petition--and if one of them claims that the consent was obtained by fraud, the court is not permitted to evaluate the case or use its inherent authority to look into the matter. According to the 1976 modification, the remedy is to submit an application in accordance with Order 23 Rule 3A of the CPC. However, the appellant's plea in this manner was turned down. The appellant did
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 not object when the aforementioned compromise was made. In light of the foregoing discussion, it can be said that the appellant is not likely to succeed in his attempt to disprove the fraud allegation against him because a preliminary decree was based on the compromise petition, which was prepared by his esteemed legal counsel and signed by the appellant. As previously mentioned, the ingredient required to make a fraud on the party and a fraud on the court is missing. This indicates that, in the context of the case, the appellant's current grievance does not amount to that type of fraud, which would also constitute fraud against the court and provide the appellant-defendant No. 1 the right to set aside the aforementioned decree. Regarding the fraud, on page 160 of Kerr's book, Fraud or Error, 7th Edition it is observed as under;
"A judgment or a decree obtained by fraud upon a Court does not bind such Court or any other, and its nullity upon this ground, though it has not been
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 set aside or reversed, before the judicature acts could be alleged in a collateral proceedings."
31. Now the appellant cannot contend that plaintiff- respondent No. 1 obtained a decree by fraud and asked for it to be disregarded.
32. Concerning the fraud "Proof of fraud, however, can in general only be taken advantage of by a stranger to a judgment who is in no way predisposed to the fraud and not by a party, since if the latter were innocent, he might have applied to vitiate the judgment, and if guilty, he cannot escape the consequence of his own wrong," the "Phipson Book," states in its useful book of evidence. Without a doubt, this is true in general. However, a competent court's ruling is generally and unquestionably irrefutable evidence in later cases involving the same parties or their representations of the issues ultimately resolved. The appellant makes multiple claims alleging misrepresentation and fraud. However, the trial court rejected his claim in its orders on IA No. 1/2014, which were issued on 3.12.2015. The final decree has already been drawn and the decree so passed has become final. In accordance with Order 43 Rule 1(u) of the CPC, the appeal against the order dated 03.12.2015 is not preferred. It has
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NC: 2024:KHC:32716-DB RFA No. 699 of 2015 therefore reached finality. The appellant is no longer able to pursue this appeal. We believe that this appeal is without merit. Furthermore, the preliminary decree has not been contested by the applicant. (Emphasis supplied)
33. Due to the aforementioned requirements, the appellant is no longer able to request the final decree, which has already been prepared and registered, to be set aside because he has completely failed to substantiate his claim of fraud as stated in the appeal memo and several interim applications. As a result, the appellant fails on the aforementioned point.
34. In view of our discussion in the foregoing paragraphs and the reason stated therein, the appeal fails and is liable to be dismissed at the cost of the respondent.
Resultantly, we pass the following:
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NC: 2024:KHC:32716-DB
RFA No. 699 of 2015
ORDER
i) Appeal is dismissed with cost of
Respondent No.1.
ii) The orders pass by the trial Court
directing to draw the final decree is
confirmed.
iii) Send back the trial Court records
along with copy of this judgment
forthwith.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK/SBS
List No.: 19 Sl No.: 2