Rajasthan High Court - Jaipur
(Shakuntala & Anr. vs . Kamal Singh) on 26 March, 2014
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B. CIVIL FIRST APPEAL NO.746/2012 (Shakuntala & Anr. Vs. Kamal Singh) Date of Order : March 26, 2014 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Manoj Bhardwaj, for the appellants. Mr. Jagmeet Singh, for respondent No.1-plaintiff. BY THE COURT
This civil first appeal under Section 96 CPC has been filed against the judgment and decree dated 01.11.2012, passed by the Additional District Judge No.1, Bharatpur whereby the suit for specific performance filed by the plaintiff-respondent No.1 (hereinafter 'the plaintiff') against the defendant-respondent No.2 (hereinafter 'the defendant') was decreed on the basis of a compromise between the plaintiff and the defendant. The appellants were not a party in the underlying suit decreed on consent as aforesaid, but state to be the assignees of the defendant under a registered sale-deed dated 06.09.2011 qua the suit land and submit that the consent decree dated 01.11.2012 between the plaintiff and the defendant is fraudulent, works to their obvious disadvantage and entitles them to file a regular civil appeal under Section 96 CPC. The appellants' submission is that the judgment and decree dated 01.11.2012 based on the plaintiff's fraudulent consent at a time he had no interest in the suit property is liable to be set aside.
The question which arises in the present appeal is as to whether an appeal by a stranger not a party in the suit against a compromise decree is maintainable in spite of the disbarment under Section 96(3) CPC which provides that no appeal shall lie from a decree passed by the court with the consent of parties.
Mr. Manoj Bhardwaj, appearing for the appellants, submits that the bar under Section 96(3) CPC is not an absolute bar and a challenge to a compromise decree can be made under the said provision with the aid of Order 43 Rule 1A(2) CPC which provides that 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. It was submitted that as the registered owner of the suit property in respect of which a decree for specific performance came to be passed on a collusion between the plaintiff and the defendant, the appellants have the right to file the present appeal on the ground that the compromise between the plaintiff and defendant was unlawful. Counsel submits that in the event the appellants were not allowed to agitate the appeal against the compromise decree dated 01.11.2012, they would be rendered remedy less inasmuch as Order 23 Rule 3A CPC provides 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. It was submitted that it cannot have been an intention of the legislature to render an aggrieved party remedy less and in view of the absolute bar under Order 23 Rule 3A CPC with regard to the laying of a separate suit challenging a compromise decree, this appeal is maintainable.
Mr. Jagmeet Singh, appearing for the plaintiff-decree-holder has submitted that the bar under Section 96(3) CPC against the filing of an appeal against a consent decree is absolute unless the case can be brought in within Order 43 Rule 1A CPC. It was submitted that even an appeal under Order 43 Rule 1A CPC can be filed by only a party to the compromise on the basis of which the consent decree had been passed. It is a party to the compromise alone who can question the legality and validity of the underlying compromise recorded by the court and the decree passed thereon. Counsel submitted that this situation does not obtain in the present case as the appeal has not been filed by the defendant-judgment-debtor or the plaintiff-decree-holder. Counsel submitted that in any event the appellants having admittedly purchased the suit property during the pendency of the suit for specific performance laid by the plaintiff against the defendant, it was for them to have engaged with requisite diligence in moving an application for impleadment in the pending suit before the passing of a judgment and decree. And if the subsequent purchasers did not become a party on an appropriate application under Order 22 Rule 10 CPC, they are liable to sufferSection 52 of the Transfer of Property Act, 1882, on account of any order passed in the pending proceedings. Mr. Singh has further submitted that a reading of the impugned judgment and decree dated 01.11.2012 indicates that the suit for specific performance had come up before the Lok Adalat where the matter had been compromised and attested and it was on that attested compromise before the Lok Adalat that the impugned judgment and consent decree dated 01.11.2012 came to be passed. Counsel submits that an order passed by a Lok Adalat is not open to challenge under Section 21(2) of the Legal Services Authorities Act, 1987 which provides that every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.
Heard the counsel for the parties and perused the impugned judgment and decree dated 01.11.2012.
The impugned judgment and decree dated 01.11.2012 is apparently a judgment and decree based on consent on the matter having been compromised and attested before the Lok Adalat. The decree in issue is thus plainly a consent decree. Section 96(3) CPC disbars the filing of an appeal against a consent decree. However, in terms of the proviso to Rule 3 Order 23 CPC where a compromise laid before the court is denied by a party, the court is under an duty to decide the question as to its validity. An order passed by the court under the proviso to Rule 3 Order 23 CPC and a decree if passed thereon can be challenged in an appeal under Section 96(1) CPC read with Order 43 Rule 1A CPC which provides that 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. To my mind, a challenge to a consent decree with aid of Order 43 Rule 1A CPC is open only to a party in the suit before the trial court which passed the judgment and decree on the basis of a compromise application. It is trite that the remedy of an appeal is a creature of the statute and the right to appeal has to be construed strictly in terms thereof. The remedy of an appeal against a consent decree aside of the general disbarment under Section 96(1) CPC is only in respect of a situation where a party to the suit in which the consent decree has been passed sets up a case that the purported compromise filed before the trial court was not a lawful compromise and therefore the acceptance thereof by the trial court as also the passing of judgment and decree based thereon was unlawful and therefore liable to be set aside. Such a recourse, in my considered opinion, would not be available to one who was not party in the suit in which a consent decree was passed on the basis of a duly recorded compromise between the plaintiff and the defendant.
Order 23 Rule 3A CPC is a disbarment which would afflict the appellants in the present case inasmuch as the appellants are claiming through the respondent-defendant before the trial court. The appellants had failed to implead themselves as defendants in the suit for specific performance before the trial court and the consequence of the failure will of necessity remain with the appellants. Aside of the aforesaid where a consent decree on the basis of an application moved by the plaintiff and the defendant before the trial court in a pending suit is sought to be challenged by a third party (the appellants herein) on the ground of fraud, it would quite clearly be a question of fact determinable no doubt only on the basis of evidence laid before the competent court by the aggrieved party (the appellants herein). This cannot be done in the appeal also otherwise not maintainable. Allegation of fraud can be more appropriately agitated before the original court by a party suffering its decree in spite of not being impleaded by moving an appropriate application under Section 151 CPC. It has been held in the case of Moti Lal & Anr. Vs. State of UP & Ors. [2004 AIHC 1829 (Allahabad)] that an ex-parte decree obtained without impleading the transferee of the property can on the satisfaction of the court passing the decree with regard to the fraud committed be set aside on an application under Section 151 CPC. The Hon'ble Supreme Court has also held albeit in a different context that the courts possess the inherent powers under Section 151 CPC to recall a judgment or order obtained by the parties before it on the basis of fraud or suppression of fact.
Therefore, in my considered opinion, the present appeal under Section 96 CPC as laid by a stranger to the underlying suit (third party) against a judgment and decree dated 01.11.2012 based on consent between the plaintiff and the defendant, passed by the Additional District Judge No.1, Bharatpur is not maintainable.
Dismissed as such.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, P.A