Karnataka High Court
Smt. Krishnamma vs Sri Kalappa on 19 July, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.I.ARUN
REVIEW PETITION NO.418 OF 2022
IN
REGULAR FIRST APPEAL NO.956 OF 2018 (PAR)
BETWEEN:
1 . SMT. KRISHNAMMA
D/O LATE BOMBAY MUNIVENKATAPPA
W/O SRINIVAS
AGED ABOUT 65 YEARS
R/AT DOOR No. 66,
MARIYAMMA TEMPLE ROAD
AMRUTHAHALLI
BENGALURU - 560 092.
2 . SRI MANJUNATH
S/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 50 YEARS,
R/AT DOOR NO.66
SRI. VENKATESHWARA NILAYA
JAKKUR MAIN ROAD
AMRUTHAHALLI
BENGALURU-560 092
3 . SMT LAKSHMI
W/O PUTTASWAMY
D/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 52 YEARS,
R/AT CHOWAKAHALLI
BYRAMANGALA POST-562109
BIDADI HOBLI
RAMANAGARAM DISTRICT
4 . SMT SHOBHA
W/O LATE MOHAN KUMAR
-2-
D/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 46 YEARS,
NO.303, 6TH CROSS
NEAR GOVERNMENT SCHOOL
BAGLUGUNTE NAGASANDRA POST
BENGALURU-560 073
... PETITIONERS
(BY SRI. M.R.RAJAGOPAL, SENIOR COUNSEL FOR
SRI. N.SRIRAM REDDY, ADVOCATE)
AND:
1. SRI KALAPPA
S/O LATE KRISHNAPPA
AGED ABOUT 52 YEARS
R/AT NO.16
1ST MAIN, 2ND CROSS
MUNIGURUPPA LAYOUT
AMRUTHAHALLI
BENGALURU-560 092
2. SUBRAMANI
S/O LATE KRISHNAPPA
AGED ABOUT 46 YEARS
R/AT NO.16
1ST MAIN, 2ND CROSS
MUNIGURUPPA LAYOUT
AMRUTHAHALLI
BENGALURU-560 092
3. SRI NAGESH
S/O LATE KRISHNAPPA
AGED ABOUT 45 YEARS
R/AT NO.16
1ST MAIN, 2ND CROSS
MUNIGURUPPA LAYOUT
AMRUTHAHALLI
BENGALURU-560 092
4. SMT UMA
W/O SRI NAGARAJ
D/O LATE KRISHNAPPA
AGED ABOUT 46 YEARS
R/AT NO.16
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1ST MAIN, 2ND CROSS
MUNIGURUPPA LAYOUT
AMRUTHAHALLI
BENGALURU-560 092
5. SRI DODDAMUNIYAPPA
S/O LATE MUNIVENKATAPPA
AGED ABOUT 86 YEARS
R/AT NEAR MARAMMA TEMPLE
AMRUTHAHALLI, YELAHANKA HOBLI
BENGALURU NORTH - 560 092
6. SMT GOWRAMMA
W/O SRI DODDAMUNIYAPPA
AGED ABOUT 76 YEARS
R/AT NEAR MARAMMA TEMPLE
AMRUTHAHALLI YELAHANKA HOBLI
BENGALURU NORTH - 560 092
7. SRI JAYARAM
S/O SRI DODDAMUNIYAPPA
AGED ABOUT 54 YEARS
R/AT NEAR MARAMMA TEMPLE
AMRUTHAHALLI YELAHANKA HOBLI
BENGALURU NORTH - 560 092
8. SMT JAYALAKSHMAMMA
D/O SRI DODDAMUNIYAPPA
AGED ABOUT 52 YEARS
R/AT NEAR MARAMMA TEMPLE
AMRUTHAHALLI YELAHANKA HOBLI
BENGALURU NORTH - 560 092
9. SMT NAGARATHNAMMA
D/O SRI DODDAMUNIYAPPA
AGED ABOUT 57 YEARS
R/AT NEAR MARAMMA TEMPLE
AMRUTHAHALLI YELAHANKA HOBLI
BENGALURU NORTH - 560 092
10 . SRI. N.JAGADISH
S/o LATE JAYAMMA
AGED ABOUT 21 YEARS
R/AT NEAR MARAMMA TEMPLE
-4-
AMRUTHAHALLI YELAHANKA HOBLI
BENGALURU NORTH - 560 092
11 . SRI N GOVARDHAN
S/O LATE JAYAMMA
AGED ABOUT 21 YEARS
R/AT NEAR MARAMMA TEMPLE
AMRUTHAHALLI YELAHANKA HOBLI
BENGALURU NORTH - 560 092
12 . SRI SHIVARAJ
S/O SRI DODDAMUNIYAPPA
AGED ABOUT 52 YEARS
R/AT NEAR MARAMMA TEMPLE
AMRUTHAHALLI YELAHANKA HOBLI
BENGALURU NORTH - 560 092
13 . SMT. VENKATALAKSHMAMMA
W/O MUNIKRISHNAPPA
AGED ABOUT 64 YEARS
R/AT AMRUTHALLI
YELAHANKA HOBLI
BENGALURU NORTH 560092
14 . SRI NAVEEN KUMAR
S/O MUNIKRISHNAPPA
AGED ABOUT 43 YEARS
R/AT AMRUTHALLI
YELAHANKA HOBLI
BENGALURU NORTH 560092
15 . SMT. MAMATHA
D/O MUNIKRISHNAPPA
AGED ABOUT 49 YEARS
R/AT AMRUTHALLI
YELAHANKA HOBLI
BENGALURU NORTH 560092
16 . SMT. ANITHA
D/O MUNIKRISHNAPPA
AGED ABOUT 42 YEARS
R/AT AMRUTHALLI
YELAHANKA HOBLI
BENGALURU NORTH 560092
-5-
17 . SMT SHUBA
D/O MUNIKRISHNAPPA
AGED ABOUT 39 YEARS
R/AT AMRUTHALLI
YELAHANKA HOBLI
BENGALURU NORTH 560092
18 . SRI A P VENKATESH
S/O PILLANANJAPPA
AGED ABOUT 66 YEARS
R/AT AMRUTHALLI
YELAHANKA HOBLI
BENGALURU NORTH 560092
19 . SRI P SATISH PAI
S/O NARASIMHA PAI
AGED ABOUT 62 YEARS
R/AT NO 85/1
K H ROAD
BENGALURU 560027
20 . SRI M S MAHADEVARAIAH
S/O M SHIVANNA
AGED ABOUT 63 YEARS
R/AT NO.59, KMC
VASANTHANAGAR MAIN ROAD
BENGALURU 560 062
21 . SMT JYOTHI
W/O LATE YOGESHWAR VERMA D
AGED ABOUT 48 YEARS
R/AT FLAT NO.326
3RD FLOOR, PATEL CLLISTO
TALACAUVERY LAYOUT
AMRUTHAHALLI
BENGALURU-560092
22 . SRI KARTHIK
S/O LATE YOGESHWAR VERMA D
AGED ABOUT 25 YEARS
R/AT FLAT NO.326
3RD FLOOR, PATEL CLLISTO
-6-
TALACAUVERY LAYOUT
AMRUTHAHALLI
BENGALURU-560092.
23 . SRI MUKESH
S/O LATE YOGESHWAR VERMA D
AGED ABOUT 25 YEARS
R/AT FLAT NO.326
3RD FLOOR, PATEL CLLISTO
TALACAUVERY LAYOUT
AMRUTHAHALLI
BENGALURU-560092
24 . SMT K VARALAKSHMI
AGED ABOUT 62 YEARS
R/AT NO.652, 11TH MAIN
HAL STAGE
BENGALURU-560038.
25 . SRI H S BADURIA
AGED ABOUT 62 YEARS
GAMBAR APARTMENTS
VASCO DIGAMA
GOA - 403 802
26 . SMT Y APARNA
MAJOR IN AGE
R/AT NO.39, 1ST MAIN
VIVEKANANDA NAGAR
BSK III STAGE,
BENGALURU-560085.
27 . SRI HAJRATH SHAIK,
AGED ABOUT 72 YEARS,
R/AT NO.14, 1ST B CROSS,
MUTHAPPA BLOCK,
GANGANAGAR,
BENGALURU-560032.
28 . SRI G SREENIVASAREDDY
AGED ABOUT 74 YEARS,
R/AT NO.228/29, 5TH CROSS,
BAHYAMNAGAR,
-7-
BENGALURU-560021.
29 . SRI K VENKATASUBRAMANIAM REDDY
AGED ABOUT 76 YEARS,
R/AT NO.3, 3RD MAIN,
ASHWINI LAYOUT, EJIPURA,
BENGALURU-560047.
30 . SRI H JAYARAJU
AGED ABOUT 68 YEARS,
R/AT NO.1764/45, 6TH MAIN,
2ND CROSS, D BLOCK,
RAJAJINAGAR 2ND STAGE,
BENGALURU-560010.
31 . M/s. CENTURY SHELTERS
A PARTNERSHIP FIRM REPRESENTED
BY ITS PARTNERS SRI. ASHWINI PAI
OFFICE AT No. 10/1,
LAKSHMINARAYAN COMPLEX
PALACE ROAD
BENGALURU - 560 052
32 . N.SUBRAMANIAN
S/o LATE NARAYANASWAMY
AGED ABOUT 64 YEARS
R/AT 46, G. BLOCK
SAHAKARNAGAR
BENGALURU - 560 095.
REPRESENTED BY LEASE HOLDER
SRI. S.GOPALAKRISHNA
S/o T. SURYANARAYANA
10/1, FIRST CROSS, FIRST FLOOR
JYOTHINAGAR, DODDABETTAHALLI
BENGALURU - 560 097.
33 . Dr. N.BALAKIRUSHNEN
S/o M.R.NARAYAN
AGED ABOUT 79 YEARS
R/AT No. 95, 7TH MAIN, G BLOCK
SAHAKARANAGAR
BENGALURU - 560 095.
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34 . KRISHNAGIRI
S/o Dr.J.VAIDYANATH IYER
AGED ABOUT 49 YEARS
R/AT 984, I A MAIN
HAL 3RD STAGE,
NEW THIPPASANDRA
BENGALURU - 560 075.
35 . R. VASANTHI
W/o SRI. P.S.RANGANATHAN
AGED ABOUT 68 YEARS
R/AT No. 1030, 4TH MAIN ROAD
II STAGE, RAJAJINAGAR
BENGALURU - 560 010.
36 . TVS PARTHASARATHI
S/o T.V.SRINIVASAN
AGED ABOUT 82 YEARS
R/AT No. 496, 4TH A CROSS
RPC LAYOUT, VIJAYANGAR II STAGE
BENGALURU - 560 040.
37 . SRI. SUGANTHANATHAN
S/o V. BANGARUSWAMY
No. 1207/660, 12TH CROSS
GIRINAGAR
BENGALURU - 560 085.
PRESENTLY R/AT
C/o SMT. VIJAYARANI
32, FIRST MAIN ROAD
MUTHYALANAGAR
BENGALURU.
38 . SRI. T. SURYANARAYANA
S/o LATE ARUNACHALAIAH
No. 10/1, FIRST FLOOR,
FIRST CROSS, JYOTHINAGAR,
DODDABETTAHALLI
V.R.PURA POST
BENGALURU - 560 097.
REPRESENTED BY GPA HOLDER
SRI. S.GOPALAKRISHNA
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S/o T. SURYANARAYANA
No. 10/1, FIRST FLOOR,
FIRST CROSS, JYOTHINAGAR,
DODDABETTAHALLI
V.R.PURA POST
BENGALURU - 560 097.
39 . C.V.PROJECTS PVT. LTD.
REGISTERED OFFICE AT No.106-10-11-12
AMRUTHAHALLI, BYTARAYANPURA
BALLARI ROAD
BENGALURU - 560 092.
REP. BY ITS AUTHORISED SIGNATORY
SRI. P. ANIL KUMAR JAIN
40 . SMT. SHARADA S. SETTY
W/o LATE A. SADANANDA SHETTY
AGED ABOUT 75 YEARS
R/AT No. 45, 8TH CROSS
BHUVANESHWARI NAGAR
DASARAHALLI
BENGALURU - 560 024.
41 . SRI. K.NAGARAJ SETTY
S/o S.MAHABALA SHETTY
AGED ABOUT 55 YEARS
R/AT No. 45, SRUSHTI NIVAS
2ND MAIN, 6TH CROSS,
ASHRAMA COLONY
BENGALURU - 560 094.
42 . SMT. GEETHA J MALLI
W/o JITENDRA MOHAN MALLI
AGED ABOUT 56 YEARS
R/AT No. F-401, 4TH FLOOR
RAHEJA PARK, MAGADI ROAD
BENGALURU - 560 079.
43 . SMT. N. SUDHA NAIK
W/o SHASHIDHAR NAIK
AGED ABOUT 63 YEARS
R/AT No. C1-103, RMV CLUSTERS
PHASE 1, DEVINAGAR
- 10 -
BENGALURU - 560 094.
44 . SRI. SHASHANK SHETTY
S/o LATE H. SURESH SHETTY AND
N. SWATHI RAI
AGED ABOUT 32 YEARS
R/AT No. C1-103, RMV CLUSTERS
PHASE I, DEVINAGAR
BENGALURU - 560 094.
45 . SMT. PRIYANKA SHETTY N
D/o LATE H. SURESH SHETTY AND
N. SWATHI RAI
AGED ABOUT 63 YEARS
R/AT No. C1-103, RMV CLUSTERS
PHASE I, DEVINAGAR
BENGALURU - 560 094.
46 . SRI. N. SUBRAMANYA
S/o NAGRAJAPPA
AGED ABOUT 52 YEARS
R/AT VENKATESHPURA
JAKKURU POST
YALAHANKA HOBLI
BENGALURU NORTH TALUK - 560 064.
47 . SMT. VEENA
W/o. SRI. N. SUBRAMANYA
AGED ABOUT 47 YEARS
R/AT VENKATESHPURA
JAKKURU POST
YALAHANKA HOBLI
BENGALURU NORTH TALUK - 560 064.
... RESPONDENTS
(BY SRI. B.V. BADRINATH,
SRI. B.R. RAMACHANDRA REDDY AND
SRI. V. NAGARAJ, ADVOCATES FOR R2, R3, R4 AND R14;
SRI. C.R. SUBRAMANYA, ADVOCATE FOR R7;
SRI. M. BABU RAO, ADVOCATE FOR R5, R8, R9, R10 & R11;
SRI. G.S. SRINIVASA AND
SRI. BADRI, ADVOCATES FOR R13 TO R17, R21 AND R30;
SRI. CHANDAN AND SRI. VAMSHI CHANDRASHEKAR,
ADVOCATES FOR R19;
SRI. BADRI VISHAL, ADVOCATE FOR R20 AND R31;
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SRI. R.SHYAM AND SRI. SATHISH KUMAR B.,
ADVOCATES FOR R21, R22 & R23;
SRI. P.S. RANGANATHAN, ADVOCATE FOR R31 TO 36;
SRI. G.S. PRASANNA KUMAR, ADVOCATE FOR R37 AND R39;
SRI. B.S. RADHANANDAN, ADVOCATE FOR R38 TO R43;
SRI. V. PRASANNA, ADVOCATE FOR R44 AND R45;
R1, R46, R47 ARE SERVED AND UNREPRESENTED;
NOTICE TO R6, R18, R23, R25, R26, R27, R30 IS DISPENSED
WITH VIDE ORDER DATED 20.04.2022;
NOTICE TO R24, R27, R28 IS DISPENSED WITH VIDE ORDER
DATED 20.06.2022)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 READ WITH SECTION 114 OF CPC PRAYING TO REVIEW THE
JUDGMENT DATED 07/02/2022 PASSED BY THIS COURT IN RFA
NO.956/2018 AND PASS SUITABLE ORDERS AND PASS SUCH
OTHER ORDER OR DIRECTION AS THIS COURT DEEM IT FIT AND
PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND
ALLOW THE REVIEW PETITION WITH COSTS, IN THE ENDS OF
JUSTICE AND EQUITY.
THIS REVIEW PETITION COMING ON FOR FURTHER
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the judgment dated 07.02.2022 rendered by this Court in RFA No.956/2018, the instant review petition is filed on the ground that the impugned judgment suffers from an error apparent on the face of the record.
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2. The petitioners herein were the appellants in RFA No.956/2018. The petitioners were originally defendants in the suit in O.S.No.450/2008 along with several other defendants. The petitioners were deleted from the original suit and a compromise was arrived at between the plaintiffs and some of the defendants and a compromise decree was passed. Aggrieved by the said compromise decree, the petitioners herein preferred RFA No.956/2018. The said appeal was disposed of as not maintainable for the following reasons:
"6. It is needless to state that the rights determined by way of a compromise petition in the impugned judgment and decree are rights in personam and not right in rem and are normally binding only between the parties to the compromise petition.
7. In the instant case, admittedly, the appellants are not parties to the compromise petition. If they are aggrieved by the compromise, they can always move the Court which recorded the compromise and in such an event, the Court shall examine the same in accordance with law. An appeal from a compromise decree is barred under Section 96(3) of CPC and the instant appeal for that reason is not maintainable."
Aggrieved by the same, the instant review petition is filed.
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3. The case of the petitioners is that an appeal against a compromise decree is maintainable under the provisions of Section 96(1) read with Order 43 Rule 1A(2) of CPC.
4. In this context, the petitioners have relied upon the following judgments:
(1) Banwari Lal v. Chando Devi (SMT) (Through Lrs.) and Another [(1993)1 SCC 581] (2) Vipan Aggarwal & Anr. v. Raman Gandotra & Ors.
(Civil Appeal No.3492/2022 decided on 29.04.2022) Based on the aforementioned judgments, it is contended that the appeal in RFA No.956/2018 ought not to have been disposed of holding that an appeal does not lie.
5. The petitioners have further relied upon the following judgments to explain what is error apparent on the face of the record and it is contended that there is an error apparent on the face of the record in the instant case:
1. M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur [AIR 1964 SC 1372]
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2. Parsion Devi v. Sumitri Devi [(1997)8 SCC 715] Based on the aforementioned provisions of law and the judgments, the petitioners contend that the appeal is maintainable and disposing of the same on the ground that the appeal is not maintainable amounts to an error apparent on the face of the record.
6. Respondent nos.1, 4 and 32 to 38 support the case of the petitioners.
7. Per contra, respondent nos.19, 20 and 31 justify the judgment rendered by this Court in RFA No.956/2018 and contend that an appeal is not maintainable in the instant case and RFA No.956/2018 has been rightly disposed of. They further contend that even presuming if the judgment is erroneous but not conceding, there is no error apparent on the face of the record and if the petitioners are aggrieved by the same, they have to prefer an appeal and they cannot file a review petition.
8. It is contended by them that Section 96(3) of CPC bars any appeal from a compromise decree. They have relied upon the following judgments to support their
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contention that, in the instant case, a review does not lie and if the petitioners are aggrieved, they have to prefer an appeal:
1. Triloki Nath Singh v. Anirudh Singh [(2020)6 SCC 629]
2. M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur [AIR 1964 SC 1372]
3. A decision of this Court in Ravindra v. Vimal and Ors.
[RSA No.100888/2014 DD 23.06.2015] reported in Manu/KA/1637/2015.
Based on the aforementioned contentions, it is prayed that the review petition be dismissed.
9. Section 96 of CPC reads as under:
"96. Appeal from original decree.-(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.
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(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 cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees."
Thus, as per Section 96(3) of CPC, no appeal shall lie from a decree passed by the Court with the consent of the parties.
10. However, Order 43 Rule 1A(2) of CPC reads as under:
"(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."
Thus, Order 43 Rule 1A(2) of CPC contemplates providing an appeal as against a compromise decree under certain circumstances. Hence, the question that arises for consideration before this Court is whether the instant case falls under such a circumstance.
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11. The Hon'ble Supreme Court in Banwari Lal v. Chando Devi (SMT) (Through Lrs.) and Another [(1993) 1 SCC 581] at paragraphs 9, 11 and 13 has held as under:
"9. 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 1-A(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 3-A of Order 23. As such a right has been given under Rule 1-A(2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring 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.
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11. The present case depicts as to how on February 27, 1991 the court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered into between the parties. The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order.
13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying 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", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or 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. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under
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which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code."
12. The said judgment has been considered by the Hon'ble Supreme Court in Civil Appeal No.3492/2022 (DD 29.04.2022) and in the said judgment, a compromise was challenged before the Court which granted the decree, but the same was rejected by the said Court and it was challenged by way of an appeal and it culminated in the proceedings before the Hon'ble Supreme Court by way of Civil Appeal No.3492/2022 and while explaining the ratio laid down in Bhanwari Lal's case, under the given facts and circumstances of the case, the Hon'ble Supreme Court has observed as follows:
"The appellants had thus the right to avail either the remedy of appeal in terms of Order 43 Rule 1A CPC or by way of an application before the court granting decree. Therefore, the application filed by the appellants before the Court which granted the decree cannot be said to be without jurisdiction."
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13. The Hon'ble Supreme Court in Triloki Nath Singh v. Anirudh Singh [(2020)6 SCC 629] while interpreting Order 43 Rule 1A(2) of CPC has held as under:
"20. Thus, after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3-A of Order 23 CPC. As such, a right has been given under Rule 1-A(2) of Order 43 to a party, who denies the compromise and invites order of the court in that regard in terms of the proviso to Order 23 Rule 3 CPC while preferring an appeal against the decree. Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute."
14. A Coordinate Bench of this Court in Ravindra v. Vimal and Ors. [RSA No.100888/2014 (DD 23.06.2015)] reported in Manu/KA/1637/2015 has considered the case of Banwari Lal v. Chando Devi (SMT) (Through Lrs.) and Another [(1993) 1 SCC 581] and has held at paragraphs 5, 6, 11 and 13 as under:
"5. A conjoint reading of these provisions makes it clear that, no appeal shall lie from a decree passed by a Court with the consent of the parties. Rule 3A of order 23 and Rule 1A(2) of Order 43 of Code were inserted by Act 104 of 1976 with effect from 1.2.1977. Order 43 Rule 1(m) provided for an
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appeal against the order under order 23 Rule 3, this Clause was omitted by Act 104 of 1976 with effect from 1.2.1977. Simultaneously, proviso was added to Rule 3 of order 23 with effect from 1.2.1977.
6. Order 43 Rule 1A(2) of the Code provides a right to file an appeal against the decree passed in a suit after recording a compromise or refusing to record a compromise on the ground that the compromise should or should not have been recorded. The said provision has to be given a harmonious interpretation considering Section 96 and Order 23 Rule 3A of the Code. As noticed earlier, Order 23 Rule 3A provides that, no suit can be filed to challenge the compromise decree on the ground that compromise was not lawful. Order 23 Rule 3A is not applicable to a stranger to a proceeding. Similarly, no appeal lies against the order recording the compromise. In the circumstances, the only option left to the stranger to challenge the compromise proceedings is to file a separate suit. This view is supported by the law laid down by this Court in the case of Shaik Shariff Uddin (supra), wherein it is held thus:
"Since the consent decree merely embodies the compromise of a contract between the parties and it is a mere creature of an agreement, the right of appeal from this decree is not provided for. The only reasonable interpretation that can be put on Section 96(3) of CPC is that against a consent
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decree, ordinarily no appeal is maintainable. However, the provisions contained in Rule 3-A have no application for a stranger to the compromise decree. It is open to a stranger to file a suit to set aside the compromise decree. Consent decree can be set aside in the suit and not in the appeal or review."
11. In view of the said dictum pronounced by the Apex Court, the award of Lok Adalat is fictionally deemed to be decree of civil Court. Therefore, an appeal shall not lie from the award of Lok Adalat, moreover by a stranger to the proceedings. Thus, finding recorded by the Courts below on the maintainability of the appeal filed by the appellant, cannot be found fault with.
13. As already discussed above, the only option left to a stranger to challenge the compromise decree is by way of filing a suit or proceedings before the competent Court. The disputed question of tenancy rights, possession of the suit property can be resolved only on holding the trial, which requires specific pleas and evidence. In view of the same, no substantial question of law arises for consideration in this appeal and accordingly, appeal is dismissed confirming the judgments and decree passed by the Courts below."
15. The case of the petitioners is that as per the provisions of Section 96(1) of CPC, an appeal is maintainable against every decree and what is barred by
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Section 96(3) of CPC is an appeal against the consent decree by a party to the compromise and not a stranger and in the instant case, the petitioners not being a party to the compromise are entitled to maintain an appeal.
16. Per contra, it is contended by the contesting respondents that a right under Rule 1A(2) of Order 43 of CPC is given to a person who denies the compromise and invites order of the Court in that regard in terms of the proviso to Order 23 Rule 3 of CPC while preferring an appeal against the decree and that Section 96(3) of CPC does not bar such an appeal because it is applicable where the factum of compromise or agreement is not in dispute. On the said ground, the review petition is sought to be dismissed.
17. Before going into the aspect as to whether the petitioners could have filed an appeal by way of RFA No.956/2018 or not against the compromise decree passed in O.S.No.450/2008, what is important to be answered is having held that an appeal is not maintainable in the light of
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Section 96(3) of CPC, can that be considered as an error apparent on the face of the record.
18. The Hon'ble Supreme Court in M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur [AIR 1964 SC 1372] in para 11 while examining what can be held as an error apparent on the face of the record has held as under:
"11. ............................................................................... A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out....................."
19. Further, the Hon'ble Supreme Court in Parsion Devi v. Sumitri Devi [(1997)8 SCC 715] in paras 9 and 10 has held as under:
"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake
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or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
10. Considered in the light of this settled position we find that Sharma, J. clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. The observations of Sharma, J. that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25-4-1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record
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that there was a mistake or an error apparent on the face of the record which was not of such a nature, "which had to be detected by a long-drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment-debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the Impugned order dated 6-3-1997."
Thus, a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error i.e. a mistake or an error should be apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record.
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20. In the instant case, this Court in RFA No.956/2018 has come to the conclusion that based upon Section 96(3) of CPC, an appeal is not maintainable from a compromise decree. It is further observed that a compromise decree confers only a right in personam and not right in rem and is not binding on the parties who is not a party to the compromise and liberty is reserved for the petitioners to approach the trial court which has recorded the compromise by making necessary application. Even otherwise, the said compromise decree is not binding on them and if any of the parties to the compromise were to implement the terms of the compromise in a manner adverse to the interest of the petitioners herein, they always have a liberty to resist the same by filing appropriate suit or such other proceedings, as the case may be as the terms of the compromise is not binding on them.
21. Whether the petitioners have a right under Order 43 Rule 1A(2) of CPC to prefer an appeal against the decree of compromise requires elaborate hearing and has the effect of rehearing the matter as to the maintainability of the appeal. There is no error apparent on the face of the record in the
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decision of this Court in RFA No.956/2018. If the petitioners are aggrieved by the same, they have to file an appeal by way of Special Leave Petition before the Hon'ble Supreme Court. Examining whether the petitioners have a right to file an appeal or not amounts to rehearing the decision taken in RFA No.956/2018 and the same is not permitted.
For the aforementioned reasons, the review petition is hereby dismissed. Pending I.As. stand disposed of accordingly.
Sd/-
JUDGE hkh.