Orissa High Court
Sk. Nasim vs Rokiya Bibi And Others .... Opp. Parties on 18 October, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.1149 OF 2023
Sk. Nasim .... Petitioner
Mr. Banshidhar Baug, Advocate
-versus-
Rokiya Bibi and others .... Opp. Parties
Mr. Dwarika Prasad Mohanty, Advocate
(For Opposite Party Nos.1 and 2)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 18.10.2023 03. 1. This matter is taken up through hybrid mode.
2. Petitioner in this CMP seeks to assail the order dated 8th September, 2023 (Annexure-5) passed by learned 3rd Additional District Judge, Balasore in FAO No.17 of 2022, whereby allowing the appeal, learned appellate Court reversed the order dated 16th April, 2022 (Annexure-4) passed by learned Senior Civil Judge, Balasore in I.A. No.380 of 2018 (CIS No.544 of 2018) [arising out of CS No.1082/1692 of 2018] partly allowing an application under order XXXIX Rules 1 and 2 CPC refusing to grant injunction in respect of B Schedule Property.
3. It is submitted by Mr. Baug, learned counsel for the petitioner that the suit has been filed for setting aside the compromise decree passed in CS No.946 of 2007 in respect of B Schedule Property. The Plaintiff also prayed for partition of the B and C schedule property. Learned trial Court, holding that a decree has already been passed in respect of B Schedule property, refused to grant any interim order of injunction in respect of the same. However, considering the materials available on record, learned trial Court directed the parties to maintain status-quo in respect of Page 1 of 4 // 2 // the C Schedule property in the said I.A. Learned trial Court, holding that the validity of the compromise decree is a matter of adjudication in the suit itself and the Plaintiffs-Opposite parties have raised a substantial question for adjudication in the suit held the prima facie case in favour of the Plaintiffs-Opposite Parties.
4. Although learned trial Court further held that the mutation ROR had already been recorded in the name of the purchasers, but observing that the description of the properties under the original MS Khata is sufficient to identify the suit property, directed that the parties shall also maintain status-quo in respect of B Schedule property.
5. Mr. Baug, learned counsel for the Petitioner relied upon the case of Triloki Nath Singh Vs. Anirudh Singh (dead) through Legal Representatives and others, reported in (2020) 6 SCC 629 and submitted that when the suit itself is not maintainable in respect of B Schedule property, as no suit by a third party to set aside a decree of compromise is maintainable, no prima facie case is made out in favour of the Plaintiff-Opposite Party. This aspect was lost sight of by learned appellate Court while adjudicating the matter. Learned trial Court, however, considering the same, had refused to grant any interim order of injunction in respect of B Schedule property. Thus, the impugned order under Annexure-5 is not sustainable and is liable to be set aside.
6. Mr. Mohanty, learned counsel for Plaintiffs-Opposite Party Nos.1 and 2 submits that there is no dispute to the case law cited by learned counsel for the Petitioner. But, learned appellate Court, while adjudicating the appeal has categorically held that the mother of the Plaintiffs on 1st August, 2011 executed registered a 'Patha Page 2 of 4 // 3 // Satwa' agreement in favour of the Respondent No.3 appertaining to Plot No.192 under MS Khata No.271 of 2014 (B Schedule property). Thus, the registered agreement of 'Patha Satwa' clearly envisages that the compromise decree was obtained by practicing fraud. Since the issue is pending for adjudication before learned trial Court with regard to validity of the compromise decree passed in CS No.946 of 2007, learned appellate Court has committed no error in directing the parties to maintain status-quo in respect of B Schedule Property to protect the lis during pendency of the suit.
7. Considering the rival contentions of the parties and on perusal of the record, it appears that in the case of Triloki Nath Singh (supra), Hon'ble Supreme Court held as under:
"2. 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 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."
8. In view of the above, it is crystal clear that a suit by thirty party to declare a compromise decree illegal and viod is not Page 3 of 4 // 4 // maintainable in view of the provision under Order XXIII Rule 3-A CPC.
9. It is further brought to the notice of this Court that the plea of execution of registered agreement by the mother of the Plaintiffs- Opposite Party Nos.1 and 2 on 1st August, 2011 conferring 'Patha Satwa' on Respondent No.3 is not available in the pleading. Thus, such a matter could not have been taken into consideration, while adjudicating the appeal, when it is not available on record.
10. In view of the ratio in the case of Triloki Nath Singh (supra), learned appellate Court should consider afresh as to whether any prima facie case is made out in favour of the Plaintiffs- Opposite Party Nos. 1 and 2 to maintain the present suit in respect of a Schedule-B property or not, which was the subject matter in CS No.946 of 2007 and was decreed on compromise.
11. Accordingly, the impugned order is set aside and the matter is remitted to learned appellate Court for fresh consideration of the appeal giving opportunity of hearing to the parties concerned keeping in mind the observations made hereinabove.
12. The parties are at liberty to raise any other grounds in support of their respective cases.
13. With the aforesaid observation and direction, the CMP is disposed of.
Issue urgent certified copy of this order on proper application.
(K.R. Mohapatra) Judge Signature Rojalin Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Page 4 of 4 Date: 19-Oct-2023 10:39:15