Gujarat High Court
Late Chhotabhai Nathabhai Patel vs Dilipbhai Shantilal Thanki on 8 November, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR LEAVE TO APPEAL) NO. 506 of 2023
In F/FIRST APPEAL NO. 15762 of 2023
With
R/CIVIL APPLICATION NO. 505 of 2023
In
F/FIRST APPEAL NO. 15714 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
LATE CHHOTABHAI NATHABHAI PATEL
Versus
DILIPBHAI SHANTILAL THANKI
==========================================================
Appearance:
MR. DHAVAL DAVE, SR. ADV. WITH RUSHABH H SHAH(7594) for the
Applicant(s) No. 1,10,2,3,4,5,6,7,8,9
for the Respondent(s) No. 3
MR JIGAR P RAVAL(2008) for the Respondent(s) No. 2
MIHIR THAKORE, SR. ADV. WITH MR SP MAJMUDAR(3456) for the
Respondent(s) No. 1
MR. HJ KARATHIYA(7012) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Page 1 of 31
Downloaded on : Fri Nov 10 20:55:31 IST 2023
NEUTRAL CITATION
C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023
undefined
Date : 08/11/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Since in both the cases, the facts have common thread and the issue involved is identical, they were heard together to be treated for final disposal by this common order.
2. These two are the applications filed by the applicants seeking leave to appeal. Civil Application No. 506 of 2023 was treated as lead application.
2.1 By filling this application, the applicants who are the original defendant Nos. 1, 2 and 6 to 13 in the Special Civil Suit, have prayed for grant of leave to prefer appeal in their individual capacity to challenge order dated 21.1.2023 below Exh. 1 and compromise decree dated 21.1.2023 passed by learned 17th Additional Senior Civil Judge, Vadodara, in Special Civil Suit No. 11 of 2023.
2.2 The said suit was filed by one Dilipbhai Shantilal Thank- respondent No.1 herein, praying for specific performance of agreement to sell dated 1.1.2013. The agreement to sell was executed by respondent No.2 by showing him to be in capacity of power of attorney holder of the applicants and the respondent No.3-the original defendants.
2.3 In the other Civil Application No. 505 of 2023, the applicants prayed to grant Leave to Appeal in respect of consent decree of even date passed in Special Civil Suit No. 277 of 2023. The said suit was instituted by the applicants herein for cancellation of the said agreement to sell.
Page 2 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
3. Noticing the broad facts, agreement to sell dated 1.1.2013 was executed by the applicants and the respondent Nos. 2 to 5 in respect of the lands in question situated at Bhaili, Taluka-District - Vadodara. Possession receipt dated 22.1.2016 came to be executed by the applicant in favour of respondent Nos. 2 to 5 as well as in favour of respondent No.1. The possession of the land was handed over to the respondent No.1 herein. The respondent No.1 is the original plaintiff-Dilipbhai of Special Civil Suit No. 11 of 2023.
3.1 As stated, the applicants-respondent Nos. 2 to 5 had instituted Special Civil Suit No. 277 of 2022 against the respondent No.1 seeking relief of cancellation of agreement to sell dated 1.1.2013. The respondent No.1 filed reply and counter claim in the said suit on 6.1.2023. Thereafter, the respondent No.1 instituted Special Civil Suit No. 11 of 2023 on 11.1.2023 praying for decree of specific performance of the agreement to sell dated 1.1.2013 against the defendants.
3.2 In the said Special Civil Suit No. 11 of 2023 as well as in the other Special Civil Suit No. 277 of 2023, a compromise was arrived at dated 13.1.2023 between the parties. As per the compromise, the applicants herein and the respondent Nos. 2 to 5 herein, agreed to execute sale deed in favour of respondent No.1-the original plaintiff in respect of the lands in question.
3.3 The applicants herein now wants to challenge the said decree dated 31.11.2023 passed in Special Civil Suit No. 11 of 2023. They also seek to prefer appeal before this court against the compromise decree passed in Special Civil Suit No. 277 of 2023. They have contended in their application for leave to appeal that the agreement to sell in question was Page 3 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined allegedly executed by respondent No.2 projecting him to be the power of attorney holder. It was claimed that respondent Nos. 3 to 5 though shown as defendants in the suit, did not have any knowledge about the suit and that any process had not gone to them. The execution of power of attorney was disputed by the applicants. It was further contended that respondent Nos. 3 to 5 had already relinquished their rights in the suit property in favour of the applicants as back as in the year 2018, which was prior to the filling of the suit and that therefore they were factually parties impleaded in the suit.
3.4 It was the case that the power of attorney holder acted with collusion and connivance with respondent No.1 and original plaintiff and entered into compromise to agree to sell the properties belonging to the applicants. It was contended that power of attorney was given to respondent No.2 pertaining to Survey No. 232 only and no other parcels of land, still, however, the other lands were included in agreement to sell.
3.5 The relinquishment deed dated 13.3.2018 was relied on to contend that the respondent No.2 had given up his share in the suit properties in favour of his brothers. It was contended that the applicants were surprised to know that registered sale deed was executed on 6.10.2018 in favour of one party. His name was also mutated in the revenue records by misusing power of attorney, it was further contended.
4. Learned senior advocate Mr. Dhaval Dave with learned advocate Mr. Rushabh Shah for the applicants highlighted all the above aspects and other events to submit that the compromise could not have been entered into and the decree thereupon could not have been passed on the basis of the compromise terms. It was therefore contended that the Court was not justified in law in taking the consent terms on record and pass Page 4 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined compromise decree on the basis of such consent terms without following Order XXIII Rule 3, CPC. It was contended that the applicants were seriously prejudiced by the impugned judgment and decree passed , therefore seeking to challenge the said judgment and decree by preferring the First Appeal before this Court, prayer was made to grant the leave to appeal.
4.1 Elaborating various facts, learned senior advocate submitted that fraud was acted upon against the applicants in entering into a compromise and getting consent decree passed in the suit. It was sought to be submitted that in view of provisions of Order V Rule 25, CPC, the applicants could not be viewed as parties to the suit. Therefore, in absence of proper service and knowledge, on their part they could not be construed as parties to the suit. It was contended that no power was conferred on respondent No.2 by the applicants and the plaintiff- respondent No.1 herein had no right to present the plaint with assertion that the applicants were represented by respondent No.2 and to serve the summons of the suit on the respondent No.2. It was contended that the defendants had been residing out of India and power of attorney was misused.
4.1.1 It was further contended on behalf of the applicants that the applicants stood as non-parties to the suit and as such the applicants are entitled to maintain the appeal against the consent decree with the leave of the court. It was alternatively submitted that the applicants were entitled to maintain appeal against the said consent decree even if they are construed as the parties to the suit and even if they were before the Court in capacity of defendants. Order XXII Rule 3, CPC was pressed into service to substantiate the assertion for right to file appeal against the said compromise decree. It was contended that if trial court had conducted an Page 5 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined inquiry into the consent compromise presented by opponents and had verified the authority of respondent No.2 as power of attorney, the court would not have accepted the consent compromise while before it. It was on such premise that the applicants had been challenging the consent decree.
4.1.2 Learned senior advocate contended that there were several circumstances such as, (i) Public Notice by Opponent No.2 in April, 2014 declaring that original power of attorneys were lost and also cancelled,
(ii) Applicant Nos. 1 & 2, parents of Opponent No.2, though expired shown as alive in the suit, (iii) Earlier litigation against Opponent No.2 when he sold other land by forging the power of attorneys of the Applicants and the explanation therein of Opponent No.2 virtually admitting the forged nature of power of attorneys used for the transaction but attributing the same to the third party purchaser there, (iv) Execution of sale deeds pursuant to the so called consent decree through court commissioner in execution proceedings to avoid filing of declaration as per government circular by the Applicants that they are alive and the power of attorneys are valid (v) Keeping stamp papers ready for execution of sale deeds through court commissioner before the Court passed an order authorising court commissioner to execute sale deeds and
(v) Only meager consideration shown in the sale deeds as having been paid to Opponent No.2, which according to him were suggestive of fraudulent conduct leading to passing of consent decree. It was then submitted that fraud vitiates everything. For this proposition, decisions in A. V. Papayya Sastry and Others vs. Govt. of A.P. and Others [(2007) 4 SCC 221] (for its paragraph Nos. 22 to 26 and 39), Meghmala and Others vs. G. Narasimha Reddy and Otehrs [(2010) 8 SCC 383] (for its paragraph Nos. 28 to 35) and S.P.Chengalvaraya Naidu vs. Page 6 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined Jagannath and Others [(1994) 1 SCC 1] (for its paragraph Nos. 1,5 and
6) were relied on.
4.1.3 Learned senior advocate relied on the decision of the Supreme Court in H. S. Gautam vs. Rama Murthy and Another [(2021) 5 SCC 241], to highlight para Nos. 18 and 41 thereof. Another decision also of the Supreme Court in Vipan Aggarwal vs. Raman Gandotara [(2022) SCC Online SC 1357], as also in Prasanta Kumar Sahoo vs. Charulata Sahoo [(2023) SCC Online SC 360], by referring to paragraph Nos. 39, 40 and 82 to 91 thereof. Yet another decision in Kamlesh Ambalal Contractor and Others vs. Jakshibhai Sajanbhai Bharvad and Others [(2012) 11 SCC 429], was relied on.
4.1.4 By relying on the aforesaid decisions, learned senior advocate sought to canvass the working and interpretation of the provisions of section 96(3), Order XLIII Rule 1A to read that Order XLIII Rule 1A(2) to contend that the applicants were aggrieved parties because of the compromise recorded and that they were entitled to challenge the consent decree in appeal by preferring the appeal. According to learned senior counsel for the applicant, under the said provisions, thee was a right to appeal for the applicants. Learned senior advocate in support of his submissions relied on the decision of the Full Bench of this Court in Sakina Sultanali Sunesara (Momin) & Ors. vs. Shia Imami Ismaili Momin Jamat & Ors. [2020 (1) GLR 586].
4.2 On the other hand, learned senior advocate Mr. Mihir Thakore assisted by learned advocate Mr. S. P. Majmudar made the following submissions.
Page 7 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
(i) On a proper interpretation of the the provisions of section 96(3), Order XXIII Rule 3, 3A and Order XLIII Rule 2(1A), CPC, the applicants have to approach the same court, which recorded the compromise between the parties. The applicants are the original defendants Nos. 1, 2 and 6 to 13 respectively in the suit.
(ii) The applicants were represented by their power of attorney holder in the suit proceedings. The said power of attorney holder was also one of the defendants and co-sharer of the suit land.
(iii) The respondent No.2-the power of attorney holder was not alien to the applicants. He was a family member of the applicants. Not only that, the respondent No.2 was party to the transaction, that is agreement to sell as well as the possession receipt given in favour of plaintiff.
(iv) The power of attorney executed by the applicants was not forged. As the applicants stayed in a foreign country they executed power of attorney in favour of respondent No.2- a family member.
(v) The applicants are the parties to the suit proceedings. Therefore, as per bar contained in the provisions of Order XXIII Rule 3A and section 96(3), CPC, the applicant has no right to file appeal and applicant seeking right to leave to appeal, is not grantable.
(vi) Unless the applicants contest the validity of the compromise before the same court which recorded the consent terms between the parties, the applicants cannot prefer appeal before this court.
(vii) The Proviso to Rule 3 or Order XXIII provides that when it is alleged by one party and denied by the other that adjustment or Page 8 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined satisfaction has been arrived at between them, in that case, the same court shall decide the issue.
(viii) Respondent No.1 is a bona fide purchaser of the land who purchased the land after paying full consideration to the applicants and respondent Nos. 2 to 5 herein.
(ix) The applicants never disputed the power of attorney of respondent No.2 till transaction entered into with respondent No.1 herein.
(x) Though the applicants had contended that the applicant Nos. 1 and 2 passed away before filling of the suit, the heirs and legal representatives of the said deceased applicants were already on record on the suit proceedings.
4.3 Thus, about the question of appealing as to whether the consent decree is validly passed or it is lawful or not, rival contentions are canvassed. The side of the applicants alleges that the consent decree was not lawful and was passed pursuant to fraud and misrepresentation. The applicants have urged that in view of the fraud which according to the applicants was manifest, the appeal would lie before this court. On the other hand, while denying the allegations and fraud and contending that separate suit or appeal is not maintainable in such cases, it is the contention of the respondent that in any view, the allegations regarding forgery or fraud could not be adjudicated in the parent proceedings and the same has to be done by leading evidence only before the same court.
5. Having considered rival case and submissions in relation to the controversy involved, surveying the applicable provisions of the Code of Page 9 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined Civil Procedure, 1908, in their interaction and operation, would be relevant.
5.1 Part VII of the Code of Civil Procedure, 1908, deals with the 'Appeals'. Section 96 thereof is about 'Appeal from Original Decree'. The provision reads as under, "(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees."
5.1.1 It would be seen that under sub-section (3) of section 96, no appeal shall lie from a decree passed by the court with the consent of the parties. Therefore, a consent decree is not amenable to appeal as the bar of section 96(3), CPC, operates.
5.1.2 The provisions regarding 'withdrawal and adjustment of the suits' are in Order XXIII. Sub rule (1) is regarding 'withdrawal of suit or abandonment of part of claim'. Rule 3 of Order XXIII provides for "Compromise of suit", which is applicable, extracted herein, "3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, Page 10 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:
Provided that where it is alleged by one party and dented by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation.--An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.".
5.1.3. The Proviso to Rule (3) of Order XXIII, CPC, aforementioned says that where it is alleged by one party and denied by other party that adjustment or satisfaction is arrived at, the court shall decide the question.
Further germane is Rule 3A, which says about 'Bar to Suit'. It provides that, "No suit shall lie to set aside a decree on the ground that compromise on which the decree is passed, was not a lawful."
5.1.4 Rule 1 of Order XLIII, CPC, in its various sub-clauses (a) to (w), mentions kind of Orders which are appealable and wherefrom an Appeal would lie. Sub clause (m) of Rule 1 of Order XLIII, CPC, as it stood before it came to be omitted with effect from 1.2.1977 by the Act 104 of 1976, provided that the appeal could be filed against the order recording compromise. After the deletion of the said clause(m) from Order XLIII, Rule 1 in the year 1997, the provision for filling appeal against the order of the court which recorded compromise, is taken away. The right to appeal against order of recording compromise is thus not available. This is to be juxtaposed to be read together with sub-section (3) of section 96, which bars appeal from decree passed by the court with consent of the parties.
Page 11 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
5.1.5 In Order XLIII is in respect of 'Appeal from Orders'. Rule 1A thereof is in respect of 'right to challenge non-appellable orders in appeal against decrees'. It is brought to the statute by the same Act 104 of 1976 with effect from 1.2.1997. It reads as under, "1A. Right to Challenge non-appealable orders in appeal against decrees -Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced."
(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."
5.1.6 As per sub-rule (2) of Rule 1A above, it is provided that in an appeal against a decree passed in a suit where the compromise is recorded or compromise is refused to be recorded, it will be open for the appellant to contest decree on the ground that compromise should or should not have been recorded.
5.1.7 It is in the context of operation and purport of the above provisions read together, the question of right to appeal and the prayer of the applicants for grant of leave to file appeal against compromise decree, needs to be examined.
5.2 The decision of the Supreme Court in Banwari Lal vs. Chando Devi (Smt.) [(1993) 1 SCC 581] explained the principle in this regard. In that case, the appeal was filed before the Supreme Court for setting aside the order of the High Court in Revision Application. High Court had Page 12 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined held that the trial court could not have entertained the application filed on behalf of the appellant for recall of the order recording a compromise alleged to have been entered into between the appellant and respondent.
5.2.1 The appellant before the Supreme Court was original plaintiff who had instituted the suit, in which the proceedings, a petition for compromise was filed on behalf of the plaintiff stating that the parties had entered into a compromise and on the basis of such compromise, the appellant-plaintiff had delivered the possession of the disputed land to the respondent. It was therefore prayed before the trial court that in view of compromise between the parties, the suit was liable to be dismissed. The said petition was not signed by contesting respondent or by his advocate. However, an advocate had made a note that thumb impression had been marked in his presence, meaning thereby that the thumb impression of the appellant was in his presence. The trial Judge passed order according to compromise and consequentially dismissing the suit as per the compromise.
5.2.2 Thereafter an application came to be filed on behalf of the plaintiff- appellant stating that he had engaged advocate who had informed the appellant that a particular date was fixed in the suit, however, on that date, the appellant learnt that the suit was already disposed of, as above. The advocate was the same who had put the endorsement that the thumb impression of the plaintiff was in his presence. It was, thus, the case of the appellant that the advocate acted in collusion with the defendant and played fraud to file a fabricated petition of compromise although no compromise had been effected between the appellant and respondent. It was contended that the alleged compromise was void and was against requirements of Rule 3 of Order XXIII, CPC. Learned trial Judge recalled his earlier order disposing of the suit and directed restoration of Page 13 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined the shit. The respondent-plaintiff filed a revision application against the said order. The High Court held that trial court could not have entertained the application of the appellant-plaintiff. The controversy reached to the Apex Court in Banwari Lal (supra).
5.2.3 The Supreme Court held that the learned Judge was justified in recalling its earlier order and that High Court also in turn committed error in treating the compromise petition under Order XXIII Rule 3, to be under Order XXIII Rule 1, CPC. The Supreme Court took into account the afore-discussed provisions of the Code of Civil Procedure to observe that experience showed that on many occasions, the parties used to file petitions of compromise and on the basis of such compromise, the decrees were prepared, however, subsequently, for one reason or another, the validity of such compromise was challenge and the parties used to file suits for setting aside such decrees, which kind of litigation dragged on for years including the appeal to the different Courts arising therefrom. It was stated that keeping in view this predicament, amendments were introduced in Order XXIII, CPC.
5.2.4 The Supreme Court referred to amended provisions to Order XXIII Rule 3, CPC, more particularly the Proviso with explanation added to the provision to observe thus, "By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said Rule." ( para 7 ) Page 14 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined 5.2.5 It was stated that having introduced the Proviso alongwith explanation in Rule 3, the object was to avoid multiplicity of the suits and to set at rest the ills of prolonged litigation. For that, it was further stated, specific bar was prescribed by Rule 3A in Order XXIII, CPC, in respect of institution of separate suit for setting aside the decree on the basis of compromise.
5.2.6 The Supreme Court highlighted also that before the amendment in Rule XLIII, Rule 1(m) was available against an order passed under Rule 3 of Order XXIII, CPC. It was stated, "Earlier under Order 43, Rule 1(m), an appeal was maintainable against an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. But by the amending Act aforesaid that clause has been deleted; the result whereof is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise under Rule 3 of Order 23. Being conscious that the right of appeal against the order recording a compromise or refusing to record a compromise was being taken away, a new Rule 1A has been added to Order 43"
( para 8 ) 5.2.7 New Rule 1(A) came to be added in Order XLIII to make good the situation post-deletion of Rule 1(m) of Order XXIII. The said Rule 1A is quoted in para 5.1.5 above.
5.2.8 Having analysed the inter-play of the relevant provisions of the CPC and noticing the effect and object of the amendments, the Supreme Court in terms stated in Banwarilal (supra) that against order recording compromise, no remedy by way of an appeal is available in cases covered by Rule 3A of Order XXIII, CPC.
Page 15 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
5.2.9 Where factum of compromise is not in dispute, bar indicated under section 96(3) of the CPC would operate, it was clearly held, "Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties. Rule 1A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order 43, Rule 1(m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be filed for setting aside such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such a right has been given under Rule 1A(2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while prefering an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute."
( para 9 ) (emphasis supplied) 5.3 In Banwari Lal (supra), the Supreme Court stated that trial judge, who at the point of time accepted the compromise, was under duty to find out whether the compromise was appropriately arrived at or that it was fraudulent, because admittedly the petition of compromise was not signed by the respondent or his counsel. The Supreme Court stated that these facts should have been discovered by the Court. The Judge was perfectly justified, stated the Supreme Court, in entertaining the application filed on behalf of the appellant and considering the question as to whether there was lawful agreement or compromise. Once he came to the conclusion on the basis of the material produced that the Page 16 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined compromise was not lawful within the meaning of Rule 3 of Order XXIII, no option was left except to recall the order.
5.3.1 The Supreme Court further stated, "The application for exercise of power under proviso to Rule 3 of Order 23 can be labeled under Section 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3. It has been held by different High Courts that even after a compromise has been recorded, the Court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise." ( para 14 ) 5.3.2 The principle emanating from the working of the provisions as discussed above, was unequivocally stated that it was the same court which had to decide as to whether the compromise in question was lawful and not void or voidable under the Indian Contract Act.
"The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that Court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise on 27.2.1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that order."
( para 14 ) 5.4 The law was elaborated with pointedness by the Supreme Court in Pushpa Devi Bhagvat vs. Rajinder Singh & Others [(2006) 5 SCC Page 17 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined 566]. Discussing the relevant provisions, the position which emerges from the amended provisions of Order XXIII was highlighted thus, "The position that emerges from the amended provisions of Order 23, can be summed up thus :
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1 Order 43.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23.
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. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. "
(para 17) (emphasis supplied) 5.4.1 The Supreme Court proceeded to explain that Rule 3 of Order XXIII consists in two parts, "The first part provides that where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. The second part provides that where a defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such satisfaction to be recorded and shall pass a decree in accordance therewith. The Rule also Page 18 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined makes it clear that the compromise or agreement may relate to issues or disputes which are not the subject-matter of the suit and that such compromise or agreement may be entered not only among the parties to the suit, but others also, but the decree to be passed shall be confined to the parties to the suit whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. We are not, however, concerned with this aspect of the Rule in this appeal."
( para 18 ) 5.4.2 In that case, the compromise decree was in the nature of settlement that the defendant would vacate the premises within the specified time. It was held that the settlement meant that the possession could be recovered in execution of such decree. In the event of defendant failing to vacate within time, stating that such a settlement would fall under first part of Order XXIII Rule 3, CPC, the Supreme Court observed, "In a suit against the tenant for possession, if the settlement is that the tenant will vacate the premises within a specified time, it means that the possession could be recovered in execution of such decree in the event of the defendant failing to vacate the premises within the time agreed. Therefore, such settlement would fall under the first part. On the other hand, if both parties or the plaintiff submit to the court that the tenant has already vacated the premises and thus the claim for possession has been satisfied or if the plaintiff submits that he will not press the prayer for delivery of possession, the suit will be disposed of recording the same, under the second part. In such an event, there will be disposal of the suit, but no 'executable' decree."
( para 18 ) 5.4.3 On facts, the Court observed further, "The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the Page 19 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code.
( para 17) (emphasis supplied) 5.5 In R. Rajanna vs. S.R.Venkataswamy and Others [(2014) 5 SCC 471], the law was reiterated. It was held that when there is a dispute regarding genuineness of compromise decree, the jurisdiction of the court would otherwise lie with the court which passed the compromise decree. The party could be relegated to file separate suit for setting aside the compromise decree. The law was reiterated in the following terms, "It is manifest from a plain reading of the above that in terms of the proviso to Order XXIII Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order XXIII Rule 3, the agreement or compromise shall not be deemed to be lawful within meaning of the said rule if the same is void or voidable under Indian Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the Court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order XXIII Rule 3A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question."
( para 11)
( emphasis supplied)
Page 20 of 31
Downloaded on : Fri Nov 10 20:55:31 IST 2023
NEUTRAL CITATION
C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023
undefined
5.6 The decision of the Supreme Court in Triloki Nath Singh vs.
Anirukh singh (Dead) through legal representatives and others [(2020) 6 SCC 629], would also go to clinch the issue. In that case, a stranger who was not party to the compromise, by filling special suit challenged the legality of compromise. The Supreme Court held that such stranger not party to the compromise, would not have cause of action to institute separate suit to challenge the legality of the compromise. The suit was not maintainable, it was held. It was ruled that the person questioning the lawfulness of the compromise must approach the same court, which recorded the compromise.
5.6.1 Noticing the facts of the case in Triloki Nath Singh (supra) would further clarify the proposition emanating. The case of the appellant plaintiff before the Supreme Court was that the suit land described in the plaint belonged to one Lalkhan Singh, who died leaving behind three sons, named Din Dayal Singh, Jalim Singh and Kunjan Singh. Din Dayal Singh had died issueless during the life time of his father. The other brother Jalim Singh died leaving behind a son, Ram Nath Singh and two daughters named Sampatiya and Soniya. The third son Kunjan Singh died issueless, however prior to his death, he had gifted the land of his share to Sampatiya on the basis of gift deed dated 10.7.1978 , which came to her possession.
5.6.2 It was the case of the appellant was that one Salehari Satyanarayan Prasad claiming herself to be the daughter of deceased Kunjan Singh above named, filed a partition suit for setting aside the gift deed and for partition of her share in the ancestral property. In that suit, Sampatiya and Soniya alongwith Dulari Devi and Ram Nath were party defendants. Sampatiya contested the suit. The suit stood dismissed and it was held that Salehari was not the daughter of Kunjan Singh, and had not right in Page 21 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined the properties. Parcel of land was sold by Sampatiya to appellant-plaintiff by registered sale deed dated 6.1.1984 and the appellant-plaintiff was put in possession of the suit property. The respondents-defendants started to interfere in possession of the suit property of the appellant-plaintiff. At that time, it was revealed that there was a compromise decree entered into between the said Sampatiya and Salehari, which was filed in the Second Appeal before the High Court of Patna.
5.6.3 The appellant-plaintiff contended that the said compromise decree was obtained by fraud and mis-representation in which the fact was concealed from the High court that the sale deed was executed much prior to the compromise arrived at between the parties and that the said compromise was therefore on such grounds as was liable to be declared as void, having been obtained by fraud. The respondents-defendants contested the suit on the ground that the suit was not maintainable as in view of relevant provisions of the Code of Civil Procedure, the plaintiff had not right to file suit, but he ought to have filed application before the High Court which recorded the compromise decree.
5.6.4 The Court in Triloki Nath Singh (supra), relied on its own two decisions in Pushpa Devi Bhagvat (supra) and R. Rajanna (supra) to state that by introducing amendment in the Code of Civil Procedure, the legislature brought into force Order XXIII Rule 3A, which created a bar to institute the suit to set aside the decree on the ground that the compromise on which the decree was passed, was not lawful. Purpose of effecting compromise between the parties is to put an end to various disputes for once and all.
Page 22 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
5.6.5 The underlying principle of finality of decisions and about the court could be instrumental in an agreed compromise to attach the finality to it, was highlighted, "Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The Court can be instrumental in having an agreed compromise effected and finality attached to the same. The Court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Rule 3 of Order 23 CPC before the Court."
( para 18 ) 5.6.6 The proposition came to be stated that because of amending act, the clause (m) Rule 1 of Order XLIII, CPC, having been deleted, no appeal was maintainable thenceforth against an order recording or refusing to record an agreement to compromise under Order XXIII Rule 3, CPC. In Triloki Nath Singh (supra), the Supreme Court therefore held that independent civil suit filed by appellant-plaintiff challenging the compromise entered into by his predecessor-in-interest before the High Court, Second Appeal was not maintainable. It was stated that in any view, the High Court which recorded the compromise, will have the jurisdiction to examine the legality of the compromise.
5.6.7 The following was observed, "In other words, the appellant can only claim through his predecessor Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will Page 23 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil Court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 CPC. It must, therefore, follow that the suit instituted before the civil Court by the appellant was not maintainable in view of specific bar under Rule 3A of Order 23 CPC as held in the impugned judgment."
(para 23) 5.7 The issue is left no longer res integra in view of the Full Bench decision of this Court in Sakina Sultanali Sunesara (supra). The Full Bench considered the question in the context of section 96(3), Order XXIII Rule 3, 3A and Order XLIII Rule 1A(2), CPC, as to what remedy the aggrieved party can have against the consent decree. It was held that Rule 3 of Order XXIII provides that when one party alleges and other party denied adjustment and satisfaction of the suit claim having been arrived at between the parties, the court has to decide the question.
5.7.1 It was further held that in the cases where the dispute is raised regarding recording of the satisfaction or adjustment, in other words, recording of consent decree is objected to and upon such disputed premise, the the court passes decree, in such circumstances, the appeal against such decree would not be barred by subsection 96(3), CPC and the affected party can contest in such appeal that the compromise not having been recorded in view of Rule 1A(2) of Order XXIII, CPC. It was stated that in other cases, where the compromise was arrived between the parties and subsequently disputed, right to file appeal is not available, but party has to approach the same court.
5.7.2 The Full Bench observed in para 25, Page 24 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
"Thus, when such adjustment or satisfaction is disputed by either of the parties to the suit, the Court has to decide the question without granting any adjournment. It is further contemplates passing of a decree in the suit between the parties to the suit, and the proviso to the said Rule also contemplates the dispute to be raised by the parties to the suit, inasmuch as it states that "where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question". Further, such question could be raised by either of the parties to the suit before or after the decree is passed by the Court under Order XXIII, Rule 3 and the Court is obliged to decide such question."
( para 25 ) 5.7.3 The Court proceeded in the same paragraph to clarify, "When no such question is raised by either of the parties and the decree is passed, it assumes the character of "Consent Decree" but when the dispute is raised and the Court passes the decree after deciding such dispute or question, it could not be called a "consent decree", and therefore, not barred by Section 96(3) of CPC. As held by three-Judge Bench of Supreme Court in case of Kishun (supra), where there is a contest on the question whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy can not be said to be a decree passed with the consent of the parties, and therefore, the bar under Section 96(3) of the Code would not have application. Thus, either of the parties who is aggrieved by such decree which is not a consent decree, could certainly file an Appeal under Section 96(1) of CPC."
(para 25 ) 5.7.4 In a situation where parties first arrived at a compromise and requested the pass the decree, which is passed by the Court, but subsequently any of the parties alleges fraud in that, in such a situation, which is the situation in the present case, the party to compromise, cannot file either appeal under section 96(1),CPC against such decree since such a decree would be a consent decree, bar of section 96(3) immediately operates.
Page 25 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
5.7.5 This was unequivocally highlighted and stated by the Full Bench in Sakina Sultanali Sunesara (Momin) (supra), in para 26, "Now, there could be a situation where the parties to the suit arrive at a compromise, sign such compromise and request the Court to pass a decree, and the Court passes the decree, however, subsequently one of the parties realises his mistake or comes to know that some fraud was committed while arriving at the compromise with the other party. In such a situation, the aggrieved party, who was party to the compromise, can not file either the Appeal under Section 96(1) against such decree, the same being the consent decree, on account of the bar contained in Section 96(3), or a separate suit, on account of the bar contained in Rule 3A of Order XXIII. The only option open to such party, therefore, would be to approach the same Court which had passed the decree."
5.7.6 The Full Bench referred to the decisions in Pushpa Devi Bhagvat (supra) and R. Rajanna (supra) to explain the ratio thus, in para 26, "As held by Supreme Court in case of R. Rajanna (supra), no sooner a question relating to the lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of the compromise, it is that Court and that Court alone who can examine and determine that question. In Pushpadevi's case also the Court has categorically summarized the legal position and held that the only remedy available to the party to the 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 lawful compromise or agreement. 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. When the said question is decided by the Court which had passed the decree, the aggrieved party could file an appeal under Section 96(1), and the bar under Section 96(3) would not be attracted, as when the factum of compromise is disputed by either of the party, and such question is decided by the Court, it no longer remains a "consent decree" between the parties. In such an appeal filed against the decree passed in a suit after recording a compromise or refusing to record a compromise, the appellant can contest the decree on the ground that the compromise should, or should not have been recorded in view of Rule 1A(2) of Order XLIII of CPC."
Page 26 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
5.8 In Sree Surya Developers vs. N. Shailesh Prasad and Others [(2022) 5 SCC 736], the same law came to be laid down. It was held that in order to challenge the directions / consent decree on the ground that it was not lawful, substantive independent action in the nature of suit by questioning the compromise decree is not maintainable in view of Order XXIII Rule 3A, CPC. In order to challenge consent decree on the ground that is not lawful, it was reiterated to hold that the party to such decree has to approach the same court which recorded the compromise based on which the consent decree was passed.
5.8.1 Yet another decision in R. Janakiammal vs. S.K.Kumarasamy (deceased) Through Legal Representatives [(2021) 9 SCC 114], deserves a reference. After noticing the different decisions including in Pushpa Devi Bhagvat (supra) and R. Rajanna (supra), the decision of law was reiterated that for challenging the compromise decree on the ground that it was unlawful, the remedy is to approach the same court, "The above judgments contain a clear ratio that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. In Suit No.1101 of 1987, the plaintiff prayed for a declaration declaring that the decree passed in O.S. No. 37 of 1984 is sham and nominal, ultravires, collusive, unsustainable invalid, unenforceable and not binding on the plaintiffs. We have noted the grounds as contained in the plaint to challenge the consent decree in foregoing paragraphs from which it is clear that the compromise, which was recorded on 06.08.1984 was sought to be termed as not lawful, i.e., void or voidable. On the basis of grounds which have been taken by the plaintiff in Suit No.1101 of 1987, the only remedy available to the plaintiff was to approach the court in the same case and satisfy the court that compromise was not lawful. Rule 3A was specifically added by the amendment to bar separate suit to challenge the compromise decree which according to legislative intent to arrest the multiplicity of proceedings. We, thus, do not find any error in the judgment of trial Page 27 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined court and High Court holding that Suit No.1101 of 1987 was barred under Order XXIII Rule 3A."
(para 55) 5.8.2 Not only that, what is important to notice is that the Supreme Court said that in such circumstances, the court would not go into the correctness or otherwise of the grounds. Therefore, it has to be observed that when remedy for the applicant is to approach the same court, various grounds raised in relation to commission of fraud and act of misrepresentation, are not required to be gone into, which rather, would have to be proved before the same court. This was stated by the Supreme Court in R. Janakiammal (supra), "We having found that Suit No.1101 of 1987 being barred under Order XXIII Rule 3A, it is not necessary for us to enter into correctness or otherwise of the grounds taken in the plaint for questioning the compromise decree dated 06.08.1984. The compromise decree dated 06.08.1984, thus, could not have been questioned in Suit No. 1101 of 1987."
(para 56) 5.8.3 The decisions relied on on behalf of the applicants in H. S. Gautam (supra), Vipan Aggarwal (supra) and Prasanta Kumar Sahoo (supra) stand on their own facts to be true, but nothing of them could be said to be attaching different interpretation to the provisions of the Code of Civil Procedure discussed above and the principle of law does not change by any of the said judgments that for challenging the uncontested compromise decree subsequently on the ground of fraud or misrepresentation by any party, the remedy is not to file substantive suit or an independent appeal, but the party has to go to the same court to get it set aside by establishing the grounds raised.
Page 28 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined
5.8.4 As far as the decision in Kamlesh Ambalal Contractor (supra) is concerned, it could be said on the careful reading of the judgment and the decision therein was governed only by the operative facts and it could not be said to be laying down any proposition of law contrary to one emanating from the aforesaid provisions.
5.9 Even if the parties have submitted settlement, there might be cases where the settlement is disputed and the contentions in that regard are raised. The court accepting the consent terms thereafter, would be passing the decree upon contest. The decree upon contest would have the element of application of mind and adjudication. Decree after such process upon compromise passed, that is upon contest, would become amenable to a separate appeal. However, in the present case, the compromise was arrived at between the parties and pursuant to terms submitted to the court, the decree was passed as agreement between the parties was shown. It was not open for them to prefer separate appeal simpliciter where the parties have submitted the compromise and requested the court to pass the decree. The aggrieved party has to approach the same court who has passed the compromise decree.
5.9.1 There is a distinction between "decree of the court" and "decree passed upon consent of the parties" or the "consent decree" as called. When the Court passes a decree, it is done after application of mind. Such decree is passed after adjudicatory process is undergone. When the consent terms submitted by the parties are translated into decree, though it becomes decree of the Court, it is without any adjudicatory process. The Court would accept the settlement between the parties and record in terms of the decree, the consent terms arrived at between the parties and put the seal of the court upon it. In the consent decree, element of Page 29 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined adjudication is absent.
5.9.2 When the adjudicatory process is not undergone by the court, and the decree is passed, it becomes in essence without adjudication, but something which is agreed between the parties. In such cases, where at subsequent stage, if such decree is to be challenged on the ground of fraud, collusion, misrepresentation, etc. or by contending that the decree ought not to have been passed, the party so contending and challenging the consent decree shall have to approach the same court which had passed the decree.
5.9.3 A conjoint reading of the provisions of section 96(3) read with Order 23 Rule 3 and 3A read with Order 43 Rule 1A (2) of the CPC, would show that neither a separate suit would lie nor the appeal would be maintainable against such decree. Any person who challenges the compromise or that the consent decree is not acceptable, has to knock the doors of the same court to get the consent decree set aside by establishing his plea on evidence. This could be done by proving the alleged facts regarding fraud, etc., by leading evidence. The law is that in such category of cases, separate suit would not lie, nor an independent appeal would be maintainable.
5.9.4 The question whether the person aggrieved by such consent decree is party to the suit or a stranger is eminently seen in Triloki Nath Singh (supra). The appellant-plaintiff was a third party stranger who instituted separate suit challenging the compromise arrived at by the other parties in the Second Appeal, where the court held that the said stranger had to approach the very High Court which had recorded the compromise in the Page 30 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023 NEUTRAL CITATION C/CA/506/2023 CAV JUDGMENT DATED: 08/11/2023 undefined Second Appeal.
5.9.5 Therefore, in cases where the agreed terms of settlement or consent is translated into the decree of the court, reversal thereof has to be by the same court upon party pleading against the consent decree and establishing its case before the same court, the plea that such decree was unlawful, fraudulent or actuated by misrepresentation.
6. In the present case, as the applicants want to contend that the decree passed by the court below upon tendering of compromise between the parties was bad as the same was passed upon fraudulent acts of the other parties, the applicants will have to approach the same court, which could set aside the consent decree upon evidential merits, and by proving the case about fraud, misrepresentation etc..
6.1 Therefore, for setting aside the consent decree which was passed uncontested, the remedy is not of instituting separate suit to set aside such decree. Nor independent appeal is maintainable in law.
6.2 In view of the above, since the appeal itself is not maintainable, question of granting leave to appeal does not arise.
7. Both the applications are dismissed.
(N.V.ANJARIA, J) (J. C. DOSHI,J) C.M. JOSHI Page 31 of 31 Downloaded on : Fri Nov 10 20:55:31 IST 2023