Karnataka High Court
Shri.Yallappagouda vs Shri.Renakigouda on 24 April, 2025
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NC: 2025:KHC-D:6829
RSA No. 100633 of 2016
C/W RSA No. 100632 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF APRIL 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100633 OF 2016 (PAR-)
C/W
REGULAR SECOND APPEAL NO. 100632 OF 2016
IN R.S.A. NO.100633/2016
BETWEEN:
1. SHRI YALLAPPAGOUDA
S/O. PARASANAGOUDA SAVAKKANAVAR,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
2. SHRI NINGANAGOUDA
S/O. PARASANAGOUDA SAVAKKANAVAR,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
SAMREEN
3. SHRI RENAKIGOUDA
AYUB S/O. PARASANAGOUDA SAVAKKANAVAR,
DESHNUR AGE: 49 YEARS, OCC: AGRICULTURE,
Location: HIGH R/O: UGARAGOL, TAL: SAUNDATTI,
COURT OF
KARNATAKA DIST: BELAGAVI-591110.
DHARWAD
BENCH
4. SHRI SHIVANAGOUDA
S/O. NINGANGOUDA SAVAKKANAVAR,
SINCE DECEASED BY HIS LR'S.
4(A) SMT. SHASHIKALA
W/O. SHIVANGOUDA SAVAKKANAVAR,
AGE: 61 YEARS, OCC: HOUSEWIFE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
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NC: 2025:KHC-D:6829
RSA No. 100633 of 2016
C/W RSA No. 100632 of 2016
5. SMT. SHANTA
W/O. VISHWANATHAGOUDA SAVAKKANAVAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
6. SMT. HIREWWA
W/O. NINGANGOUDA SAVAKKANAVAR,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
...APPELLANTS
(BY SRI. SHREEVATSA S. HEGDE, ADVOCATE)
AND:
1. SHRI RENAKIGOUDA
S/O. BASANAGOUDA SAVAKKANAVAR,
AGE: 63 YEARS, OCC: ADVOCATE,
R/O: CTS NO.5483, TMC NO.2474/132,
RAMAPUR SITE, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
2. SMT. KASTURI
W/O. FAKIRAGOUDA SAVAKKANAVAR,
AGE: 63 YEARS, OCC: ADVOCATE,
R/O: UGARGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
3. SMT. GIRIJA
D/O. FAKEERAGOUDA SAVAKKANAVAR,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: HULAKATTI, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
4. SMT. GOURAVVA
D/O. FAKEERAGOUDA SAVAKKANAVAR,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHINCHALI, TAL: RAIBAG,
DIST: BELAGAVI-591235.
5. SMT. SHOBHA
W/O. MAHESH MANGALARATI,
AGE: 30 YEARS, OCC: HOUSEWIFE,
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NC: 2025:KHC-D:6829
RSA No. 100633 of 2016
C/W RSA No. 100632 of 2016
R/O. UGARGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
...RESPONDENTS
(BY SRI. ASHOK B. PATIL, ADVOCATE FOR C/R1, R2 & R4;
SRI. ARUN L. NEELOPANT, ADVOCATE FOR R1, R2 & R4;
R3 & R5 SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 06.04.2016 PASSED
IN R.A.NO.10/2013 BY THE HON'BLE SENIOR CIVIL JUDGE,
SAUNDATTI DISMISSING THE APPEAL PREFERRED BY THE
APPELLANTS WHILE CONFIRMING THE JUDGMENT AND DECREE
DATED 28.03.2013 PASSED IN O.S.NO.151/1989 PASSED BY THE
CIVIL JUDGE AND JMFC, SAUNDATTI DECREEING THE SUIT OF THE
RESPONDENTS NO.1 AND FURTHER BE PLEASED TO ALLOW THIS
APPEAL BY DISMISSING THE SUIT OF THE RESPONDENT NO.1.
IN R.S.A. NO.100632 OF 2016
BETWEEN
1. SHRI YALLAPPAGOUDA
S/O. PARASANAGOUDA SAVAKKANAVAR,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
2. SHRI NINGANAGOUDA
S/O. PARASANAGOUDA SAVAKKANAVAR,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
3. SHRI RENAKIGOUDA
S/O. PARASANAGOUDA SAVAKKANAVAR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
4. SHRI SHIVANAGOUDA
S/O. NINGANGOUDA SAVAKKANAVAR,
SINCE DECEASED BY HIS LR'S.
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NC: 2025:KHC-D:6829
RSA No. 100633 of 2016
C/W RSA No. 100632 of 2016
4(A) SMT. SHASHIKALA
W/O. SHIVANGOUDA SAVAKKANAVAR,
AGE: 61 YEARS, OCC: HOUSEWIFE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
5. SMT. SHANTA
W/O. VISHWANATHAGOUDA SAVAKKANAVAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
6. SMT. HIREWWA
W/O. NINGANGOUDA SAVAKKANAVAR,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: UGARAGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
...APPELLANTS
(BY SRI. SHREEVATSA S. HEGDE, ADVOCATE)
AND:
1. SHRI RENAKIGOUDA
S/O. BASANAGOUDA SAVAKKANAVAR,
AGE: 63 YEARS, OCC: ADVOCATE,
R/O: CTS NO.5483, TMC NO.2474/132,
RAMAPUR SITE, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
2. SMT. KASTURI
W/O. FAKIRAGOUDA SAVAKKANAVAR,
AGE: 63 YEARS, OCC: ADVOCATE,
R/O: UGARGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
3. SMT. GIRIJA
D/O. FAKEERAGOUDA SAVAKKANAVAR,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: HULAKATTI, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
4. SMT. GOURAVVA
D/O. FAKEERAGOUDA SAVAKKANAVAR,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHINCHALI, TAL: RAIBAG,
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NC: 2025:KHC-D:6829
RSA No. 100633 of 2016
C/W RSA No. 100632 of 2016
DIST: BELAGAVI-591235.
5. SMT. SHOBHA W/O. MAHESH MANGALARATI,
AGE: 30 YEARS, OCC: HOUSEWIFE,
R/O. UGARGOL, TAL: SAUNDATTI,
DIST: BELAGAVI-591110.
...RESPONDENTS
(BY SRI. ASHOK B. PATIL, ADVOCATE FOR R1, R2 & R4;
SRI. ARUN L. NEELOPANT, ADVOCATE FOR R1, R2 & R4;
R3 & R5 SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 06.04.2016 PASSED
IN R.A.NO.9/2013 BY THE HON'BLE SENIOR CIVIL JUDGE,
SAUNDATTI DISMISSING THE APPEAL PREFERRED BY THE
APPELLANTS WHILE CONFIRMING THE JUDGMENT AND DECREE
DATED 28.03.2013 PASSED IN O.S.NO.104/1995 PASSED BY THE
CIVIL JUDGE AND JMFC, SAUNDATTI DECREEING THE SUIT OF THE
RESPONDENTS NO.1 AND FURTHER BE PLEASED TO ALLOW THIS
APPEAL BY DISMISSING THE SUIT OF THE RESPONDENT NO.1.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
22ND APRIL 2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH
CAV JUDGMENT
1. These two appeals are preferred by the defendants, challenging the judgment and decree passed by the Courts below.
2. In RSA No.100632/2016, the defendants No.2 to 5, 6-A and defendant No.10 are assailing the judgment -6- NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 and decree dated 06.04.2016 in R.A.No.9/2013 on the file of the Senior Civil Judge, Saundatti1, dismissing the appeal and confirming the judgment and decree dated 28.03.2013 in O.S.No.104/1995 on the file of the Civil Judge and JMFC, Saundatti2 decreeing the suit of the plaintiff.
3. In RSA No.100633/2016, the defendants No.1-b to 1-d, defendant No.2, defendant No.3-a and defendant No.5 are assailing the judgment and decree dated 06.04.2016 in R.A.No.10/2013 on the file of the Senior Civil Judge, Saundatti, dismissing the appeal and confirming the judgment and decree dated 28.03.2013 in O.S.No.151/1989 on the file of the Civil Judge and JMFC, Saundatti decreeing the suit of the plaintiff.
4. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.
1Hereinafter referred to as 'First Appellate Court' 2 Hereinafter referred to as 'Trial Court' -7- NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016
5. Facts in nutshell in O.S.No.151/1989 are that, the plaintiff claims to be an adopted son of one Basanagouda (deceased) and Sonawwa - defendant No.7 in O.S.No.151/1989. It is further averred in the plaint that the suit schedule property is the Hindu joint family property consisting of plaintiffs and defendants. It is further averred in the plaint that the original propositus -
Ninganagouda had two children namely Ramanagouda and Parasanagouda. Ramanagouda had a son-Linganagouda.
Parasanagouda - second son of Linganagouda had three children namely Shivanagouda (father of defendant No.4), Yallappagouda (father of defendant No.6) and Basanagouda (husband of defendant No.7 (Sonawwa) and father of the plaintiff). Defendant No.4a to 4c are the children of defendant No.4. Insofar as the branch of first son - Ramanagouda son of Ninganagouda is that the Ramangaouda had a son namely Linganagouda, who died leaving behind his son Fakiragouda (father of defendant No.1). It is stated that the Fakiragouda had three children namely Parasanagouda (defendant No.1), Ninganagouda -8- NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 (father of defendant No.2) and Vishwanathgouda (defendant No.3). It is further averred in the plaint that the defendant No.7 - Sonawwa had taken the plaintiff in adoption on 12.06.1963 as per the adoption deed which came to be registered on 16.06.1963. It is further stated in the plaint that plaintiff being the adopted son of defendant No.7-Sonawwa and late Basanagouda and therefore the plaintiff is entitled for 1/6th share in the suit schedule property. Hence, the plaintiff has filed suit in O.S.No.151/1989 and O.S.No.104/1995 seeking partition and separate possession in respect of the suit schedule property.
6. After service of summons the defendants entered appearance and contested the matter on merits. It is the specific contention of defendant No.1, same was adopted by defendant Nos.2, 3 and 5, that the plaintiff and defendant No.7-Sonawwa had filed suit in O.S.No.45/1966 seeking partition and separate possession in respect of the suit schedule properties. The natural father of the plaintiff -9- NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 represented the plaintiff as a next friend, as the plaintiff was minor. The plaintiff, after attaining the age of majority, filed I.A.No.5 and got discharged his next friend and contested the matter independently. It is also stated that the plaintiff and defendants have entered into compromise and as such, compromise application was filed before the Trial Court on 10.12.1970 and the plaintiff has signed the compromise petition and same has been acted upon and therefore, the second suit filed by the plaintiff is not maintainable and hit by res-judicata. It is also stated that the plaintiff has attained majority and has entered into compromise decree along with his adopted mother-
Sonawwa and therefore, the suit is not maintainable. It is also stated that suit is filed beyond time and accordingly, barred by limitation. Hence, the defendants sought for dismissal of the suit.
7. During the pendency of the suit, defendant No.4 died and his legal representatives were brought on record and they have supported the claim of the plaintiff.
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 Defendant No.6 and 7 have filed separate written statement and contended that the judgment and decree in O.S.No.45/1966 is void ab-initio and same is not binding on the parties and as such, sought for 1/6th share each in the suit schedule properties.
8. The Trial Court, based on pleadings on record, has formulated issues for its consideration. In order to prove their case, the plaintiff has examined seven witnesses as PW1 to PW7 and produced 36 documents, which were marked as Ex.P1 to Ex.P36. The defendant has examined three witnesses as DW1 to DW3 and produced 31 documents, which were marked as Ex.D1 to Ex.D31.
The Trial Court, after considering the material on record, by its judgment and decree dated 28.03.2013 decreed the suit and feeling aggrieved by the same the contesting defendants have preferred R.A.No.10/2013 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court by its judgment and decree dated 06.04.2016 dismissed the appeal and being
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 aggrieved by the same, the contesting defendants have preferred RSA No.100633/2016 before this Court.
9. Facts in O.S.No.104/1995 are similar to the facts in O.S.No.151/1989 and further it is contended in the plaint that, the plaintiff has filed application No.8 under Order XXXIX Rule 7 of CPC seeking preservation of the suit schedule property and the said application was rejected by the Trial Court on 01.12.1990 and being aggrieved by the same, the plaintiff has preferred CRP No.625/1991 before this Court and this Court by order dated 03.07.1992 confirmed the order of the Trial Court, however reserved liberty to the plaintiff for appropriate relief. It is also stated that at the time of filing of the suit in O.S.NO.45/1966, the suit properties were not known to the plaintiff and as such, some of the movable properties are the schedule properties in O.S.No.104/1995. Hence, the plaintiff has sought for partition and separate possession in respect of the suit schedule properties.
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10. After service of notice, the defendants entered appearance and contended that the compromise decree in O.S.No.45/1966 is binding on the plaintiff and further contended that, suit is barred by Order II Rule 2 of CPC.
Hence, sought for dismissal of the suit.
11. The Trial Court, based on pleadings on record, has formulated issues for its consideration. In order to prove their case, the plaintiff has examined two witnesses as PW1 and PW2 and produced 8 documents as Ex.P1 to Ex.P8. The defendant has examined one witness as DW1 and produced 3 documents as Ex.D1 to 3. The Trial Court after considering the material on record by its judgment and decree dated 28.03.2013 decreed the suit and feeling aggrieved by the same the contesting defendants have preferred R.A.No.9/2013 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court by its judgment and decree dated 06.04.2016 dismissed the appeal and being aggrieved by
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 the same, the contesting defendants have preferred RSA 100632/2016 before this Court.
12. This Court vide order dated 11.07.2019 formulated the following substantial questions:
1) Whether the Courts below were justified in not dismissing the suit instituted by respondent No.1 as being not maintainable in view of the bar contained under Order XXIII Rule 3-A of CPC?
2) Whether the Courts below were justified in ignoring that principle since the respondent No.1 has not prayed for setting aside the compromise decree dated 10.12.1970 passed in O.S.No.45/1966, he is not entitled to the reliefs sought for in view of the dictum that even an (allegedly) erroneous judgment and decree passed by a competent Court of law continues to be in force and binding till set aside by a competent Court in a manner known to law?
3) Whether the Courts below were justified in ignoring that the suit instituted by the respondent No.1 is barred by limitation as he has failed to challenge the compromise decree passed on 10.12.1970 for more than 18 years?
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4) Whether the First Appellate Court is justified in not formulating points for consideration as required under order XLI Rule 31(A) of CPC?
13. I have heard Sri. Srivatsa S Hegade, learned counsel for the appellants and Sri. Ashok B Patil, and Sri. Arun Nilopanth for the respondents.
14. Sri. Srivatsa S Hegade, learned counsel appearing for the appellant contended that both the Courts below have committed an error in not considering the fact that the plaintiff has filed O.S.No.45/1966 before the Trial Court seeking relief of partition and separate possession in respect of suit schedule property, which came to be disposed of on 10.12.1970 as per the compromise decree passed by the Trial Court and thereafter, the plaintiff has filed separate suits seeking similar relief, which is not permissible under law and therefore, sought for interference of this Court. He further contended that the plaintiff himself got discharged from guardianship in O.S.No.45/1966 as he attained majority and therefore being a signatory to the compromise decree, the plaintiff
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 cannot maintain second suit on similar relief and therefore, sought for interference of this Court.
15. Nextly, it is contended, by the learned counsel for the appellants by referring to Ex.P26, Ex.P33 and Ex.P36, that the aforementioned documents make it clear that the plaintiff has attained majority and the said aspect of the matter was ignored by both the Courts below. It is further contended by the learned counsel appearing for the appellant that O.S.No.45/1966 came to be decreed on 10.12.1970 and thereafter suit is filed belatedly and therefore, the suit is barred by limitation and as such, sought for interference of this Court contending by that the finding recorded by both the Courts below requires to be interfered with in these appeals.
16. In order to buttress his arguments, learned counsel appearing for the appellants places reliance on the judgment of the Hon'ble Supreme Court in the case of Sree Surya Developers and promoters v. N.Sailesh
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 Prasad and others3, in the case of Murugan and others4, in the case of Nangali Amma Bhavani Amma v. Gopalkrishnan Nair and others5 and in the case of K.Jagannathan v. A.M.Vasudevan Chettiar6 and contended that, the judgment and decree passed by both the Courts below requires interference by this Court.
17. Per contra, Sri. Ashok Patil, learned counsel appearing for the respondent Nos.1, 2 and 4 contended that the judgment and decree in O.S.No.45/1966 is not binding on the parties and the said judgment is non-est as the plaintiff was minor at the time of passing of compromise decree and the interest of minor plaintiff was not protected and therefore, contended that the suits filed by the plaintiff in O.S.No.151/1989 and O.S.No.104/1995 are maintainable in law and accordingly, sought for dismissal of appeals. Nextly, it is contended by the learned counsel for the respondent that the judgment and decreed 3 (2022) 5 SCC 736 4 (2019) 20 SCC 633 5 (2004) 8 SCC 785 6 2001-2-L.W.492
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 in O.S.No.45/1966 has been obtained by the appellants herein fraudulently and the signature of the plaintiff was taken under want of free consent and therefore, sought for dismissal of the appeal. It is also contended by the learned counsel appearing for the respondents that Order XXIII Rule 3-A of CPC is not applicable to the case on hand since the judgment and decree in O.S.No.45/1966 is in all respect nullity in law and accordingly sought for dismissal of the appeal.
18. It is further contended by the learned counsel for the respondents that even if the judgment and decree which is nullity in law is not questioned by the parties aggrieved therein and same is not binding on the parties and therefore, to buttress his arguments learned counsel for the respondents refers to the following judgments:
i) Syed Rasool and others v. Mohammad Moulana7
ii) Sanjay Kaushish v. D.C.Kaushish and others8 7 AIR 1977 KAR 173 8 AIR 1992 Delhi 118
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iii) Suraj Narain Dube v. Sukhu Aheer and another9
iv) Firm Bhola Ram Harbans Lal and another v.
Bhagat Ram and others10
v) Bhagwan Dayal (Dead) by LRs v. Mst.Reoti
Devi (Dead) by LRs11
vi) Ratnam Chettiar and others v.
S.M.Kuppuswami Chettiar and others12
vii) A.Ganapathi Nayak v. Sri Devantha13
19. Sri. Arun Neelopant, learned counsel appearing for some of the respondents supported the arguments of Sri. Ashok Patil, and contended that the compromise decree passed by the Court in O.S.No.45/1966 is nullity in law and same is not binding on the parties and as such, supports the contentions raised by Sri.Ashok Patil.
20. In the light of the submissions made by the learned counsel for the parties and in order to understand the relationship of the parties the genealogy of the parties is as under;
9AIR 1928 Allahabad 440 10 AIR 1927 Lahore 24 11 AIR 1962 Supreme Court 287 12 AIR 1976 SC 1 13 ILR 1999 KAR 613
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RSA No. 100633 of 2016
C/W RSA No. 100632 of 2016
Ninganagouda (Propositus)
Ramanagouda Parasanagouda
Linganagouda
Shivanagouda Yallappagouda Basanagouda
Fakiragouda Fakiragouda (D4) Matangewwa (D6) Sonawwa (D7)
Kasturi Girija Gourawwa Renakigouda
(D-4A) (D-4B) (D-4C) Plaintiff
Parasanagouda Ninganagouda Vishwanathgouda (D3)
(D1)
Hirewwa (D5) Shantha (D3A)
Shivanagouda (D2)
Mallawwa Yallappagouda Ninganagouda Renakigouda
(D-1A) (D-1B) (D-1C) (D-1D)
21. Perusal of the genealogy of the parties would indicate that the plaintiff and defendants are belonged to Hindu joint family having a propositus-Ninganagouda. It is
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 not in dispute with regard to the relationship between the parties. Plaintiff has been adopted by Sonawwa-defendant No.7 on 12.06.1963 and thereafter deed of adoption was executed on 13.06.1963. The core question needs to be answered in the light of the submissions made by the learned counsel appearing for the parties is as to maintainability of the suit filed by the plaintiff in O.S.No.151/1989 (old O.S.No.72/1982) and O.S.No.104/ 1995. It is the principal submission of the contesting defendants that the plaintiff has filed suit in O.S.No.45/1966 seeking relief of partition and separate possession and as the plaintiff was minor being represented by his natural father. Sonawwa-the adopted mother of plaintiff is plaintiff No.2 in O.S.No.45/1966. It is also not in dispute that the natural guardian was discharged on attaining majority of plaintiff and in this regard the plaintiff has filed an application and same was accepted. Subsequently, compromise petition was filed before the Trial Court and the compromise was entered into between the parties, accordingly, compromise decree
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 was passed by the Trial Court on 10.12.1970 as per Ex.P28. Therefore, it is the contention of the defendants that the subsequent suits are not maintainable. Though the learned counsel Sri. Ashok Patil referred to various aforementioned judgments and submitted that the plaintiff was minor at the time of passing of the compromise decree in O.S.No.45/1966 and therefore, the said compromise decree is nullity in law and is non-est and further he argued that in all probability the said decree is non-existing decree and therefore, contended that the subsequent suit is maintainable and as such, sought for dismissal of the appeal.
22. I have carefully examined the judgments referred to by Sri. Ashok Patil, wherein it is held that the minor's agreement is void and what is void is obviously is a nullity in law and has no existence in the eye of law and therefore, the said non-existed decree cannot be given effect to by the parties. Referring to judgment of this Court in the case of Syed Rasool (supra) wherein it is
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 held that when the document in question is void, the question of seeking its cancellation would not arise at all.
The said aspect of the question of law was reiterated by various courts in the judgments referred to above by Sri. Ashok S Patil. Therefore, it is contended that the second suit is maintainable and not hit by doctrine of res-judicata and accordingly, it is argued that, the appeal deserves to be dismissed.
23. In this regard, I have given my anxious consideration to the provision contained under Order XXIII Rule 3-A of CPC. The question arises in these appeals is squarely covered by the recent judgment of the Hon'ble Supreme Court in the case of Basavaraj v. Indira and others14, wherein Paragraph 7 to 9 reads as under:
7. It is a case in which the appellant has been forced into avoidable unnecessary litigation to rush to this Court. The suit was filed by respondents 1 and 2 in 2005 seeking partition of the ancestral property. It was specifically pleaded in the suit that there was a compromise decree between the 14 (2024) 3 SCC 705
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 parties. However, as may be the advice to respondents 1 and 2, despite there being a compromise decree existing between the parties, no prayer was made in the suit with reference thereto, if any grievance was there. It remained simpliciter a suit for partition. A specific stand was taken by the appellant in the written statement to the effect that the suit is not maintainable unless cancellation of the compromise decree is prayed for as the same would operate as res-judicata. The written statement was filed in August 2005. Despite the specific pleading of the appellant, the respondents 1 and 2 did not take any steps.
8. During the pendency of the suit, an amendment was carried out by respondents 1 and 2 to implead respondent 4 in the suit who was the purchaser of a part of the suit property. The same was allowed on 01.07.2006. Thereafter, trial of the suit continued. When it reached at the stage of arguments in February 2010 an application was filed by respondents 1 and 2 seeking amendment of the plaint. The reasons assigned to file the belated application seeking amendment of the plaint were that due to oversight and by mistake, the respondents 1 and 2 failed to seek relief of declaration of the compromise decree being null and void and were unable to deposit the court fee.
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9. The law with reference to challenge to a compromise decree is well settled. It was opined in Pushpa Devi Bhagat v. Rajinder Singh15 that (i) appeal is not maintainable against a consent decree; (ii) no separate suit can be filed; (iii) consent decree operates as an estoppel and binding unless it is set aside by the court by an order on an application under the proviso to Order XXIII Rule 3 C.P.C.; and (iv) the only remedy available to a party to a consent decree is to approach the Court which recorded the compromise as it was opined to be nothing else but a contract between the parties superimposed with the seal of approval of the Court. Relevant part of paragraph 17 thereof is extracted below:
"17. 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 15 (2006) 5 SCC 566
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 of the deletion of clause (m) of 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 3-A.
(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. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made..."
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24. It is also to be noted that Hon'ble Supreme Court in the case of Sree Surya Developers and promoters v. Raja Pushpa Properties Private Limited16, wherein paragraph 7 to 11.3 reads as under:
7. Now, so far as the main issue whether the trial court rightly rejected the plaint in exercise of powers under Order 7 Rule 11 CPC on the ground that an independent suit challenging the compromise decree would be barred in view of Order 23 Rule 3-A CPC is concerned, on plain reading of Order 23 Rule 3-A CPC, the trial court was justified in rejecting the plaint. Order 23 Rule 3-A CPC, which has been inserted by amendment in 1976 reads as under:
"3-A. Bar to suit.--No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."
8. Therefore, on plain reading of Order 23 Rule 3- A CPC, no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Identical question came to be considered by this Court in 16 (2022) 5 SCC 736
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 R.Janakiammal v. S.K. Kumarasamy, (2021) 9 SCC 114. It is observed and held by this Court that Rule 3-A of the Order 23 bars the suit to set aside the decree on the ground that the compromise on which decree was passed was not lawful. It is further observed and held that an agreement or compromise which is clearly void or voidable shall not be deemed to be lawful and the bar under Rule 3-A shall be attracted if compromise on the basis of which the decree was passed was void or voidable. In this case, this Court had occasion to consider in detail Order 23 Rule 3 as well as Rule 3-A.
9. The earlier decisions of this Court have also been dealt with by this Court in paras 53 to 57 as under : (R. Janakiammal v. S.K. Kumarasamy, (2021) 9 SCC 114, SCC pp. 132-36) "53. Order 23 Rule 3 as well as Rule 3-A came for consideration before this Court in large number of cases and we need to refer to a few of them to find out the ratio of judgments of this Court in context of Rule 3 and Rule 3-A. In Banwari Lal v. Chando Devi, (1993) 1 SCC 581, this Court considered Rule 3 as well as Rule 3-A of the Order 23. This Court held that the object of the Amendment Act, 1976 is to compel the
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 party challenging the compromise to question the court which has recorded the compromise. In paras 6 and 7, the following was laid down : (SCC pp. 584-85) '6. The experience of the courts has been that on many occasions parties having filed petitions of compromise on basis of which decrees are prepared, later for one reason or other challenge the validity of such compromise. For setting aside such decrees suits used to be filed which dragged on for years including appeals to different courts. Keeping in view the predicament of the courts and the public, several amendments have been introduced in Order 23 of the Code which contain provisions relating to withdrawal and adjustment of suit by the Civil Procedure Code (Amendment) Act, 1976. Rule 1 Order 23 of the Code prescribes that at any time after the institution of the suit, the plaintiff may abandon his suit or abandon a part of his claim. Rule 1(3) provides that where the Court is satisfied : (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw such suit with liberty to institute a fresh suit. In view of Rule 1(4) if the plaintiff abandons his suit or withdraws such suit without permission referred to above, he shall be precluded from instituting any such suit in respect of such subject-matter. Rule 3 Order 23 which contained the procedure regarding compromise of the suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree. Not only in Rule 3 some special requirements were introduced before a compromise is recorded by the court including that the lawful agreement or a compromise must be in writing and signed by the parties, a proviso with an Explanation was also added which is as follows:
"Provided 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; but no adjournment shall be granted for the purpose of deciding the question, unless the
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 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."
7. 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 Contract Act shall not be deemed to be lawful within the meaning of the said Rule. Having introduced the proviso along with the Explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3-A in respect of institution of a separate suit for setting aside a decree on the basis of a compromise saying:
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 "3-A. Bar to suit.--No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." '
54. The next judgment to be noted is Pushpa Devi Bhagat v. Rajinder Singh (2006) 5 SCC 566, speaking for the Court noted the provisions of Order 23 Rule 3 and Rule 3-A and recorded his conclusions in para 17 in the following words : (SCC p. 576) '17. 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) of 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 3-A.
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016
(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 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. 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
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the 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 the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code.'
55. The next judgment is R. Rajanna v. S.R. Venkataswamy (2014) 15 SCC 471 : (2015) 4 SCC (Civ) 238 in which the provisions of Order 23 Rule 3 and Rule 3-A were again considered. After extracting the aforesaid provisions, the following was held by this Court in para 11 : (SCC p. 474) '11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 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
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the 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 23 Rule 3-A 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. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 the provisions of Order 23 Rule 3-A CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3-A CPC. Having thus got the plaint rejected, the defendants (the respondents herein) could hardly be heard to argue that the plaintiff (the appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court.'
56. The judgments of Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566] as well as Banwari Lal v. Chando Devi, (1993) 1 SCC 581 were referred to and relied on by this Court. This Court held 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
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 compromise, it is that court and that court alone which can examine and determine that question.
57. In subsequent judgment, Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC 629 :
(2020) 3 SCC (Civ) 732, this Court again referring to earlier judgments reiterated the same proposition i.e. 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 separate suit is not maintainable. In paras 17 and 18, the following has been laid down : (SCC p. 638) '17. By introducing the amendment to the Civil Procedure Code (Amendment) Act, 1976 w.e.f. 1-2-1977, the legislature has brought into force Order 23 Rule 3-A, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all.
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18. 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 3-A of the 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 Order 23 Rule 3 CPC before the court.' "
That thereafter it is specifically observed and held 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
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 separate suit challenging the consent decree has been held to be not maintainable.
10. In view of the above decisions of this Court, the trial court was absolutely justified in rejecting the plaint on the ground that the suit for the reliefs sought challenging the compromise decree would not be maintainable.
11. Now, so far as the submission on behalf of the plaintiff that in the suit the plaintiff has not specifically prayed for setting aside the compromise decree and what is prayed is to declare that the compromise decree is not binding on him and that for the other reliefs sought, the suit would not be barred and still the suit would be maintainable is concerned, the aforesaid cannot be accepted.
11.1. As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 that bogus litigation will end at the earlier stage.
11.2. In T.Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467, it is observed and held as under : (SCC p. 470, para 5) "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal --
reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 11.3. In Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364 , this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
25. In the case of Bhima Rama Jadhav v. Abdul Rahid17 the Division Bench of this Court has held that unless the consent decree is set aside in proper proceedings, it is binding as res-judicata and estoppel for subsequent suits. Hon'ble Supreme Court in the case of Sneha Gupta v. Devi Sarup and others18, at paragraph 53 held as follows:
"53. There cannot be any doubt that even if an order is void or voidable, the same must be set aside, as has been held by this Court in M.Meenakshi v. Metadin Agarwal (2006) 7 SCC 470 and Sultan Sadik v. Sanjay Raj Subba (2004) 2 SCC 377."17
AIR 1968 Mysore 184 18 (2009) 6 SCC 194
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26. What emerges from the aforementioned judgments of the Hon'ble Supreme Court is that if the compromise decree has been entered into by the parties to the suit, same is binding on all the parties to the suit. If any of the parties in the suit, having been aggrieved by the compromise decree, shall approach the very same court for recalling the decree of compromise and such, aggrieved party in the compromise decree is forbidden to file fresh suit seeking similar relief. Applying the aforesaid principles to the case on hand, it is to be noted that the compromise decree was made on 10.12.1970 in O.S.No.45/1966 (Ex.P28) and the suit was filed by the plaintiff seeking similar relief of partition in O.S.No.151/1989 (old O.S.No.72/1982) and O.S.No.104/1995, after a period of 11 years belatedly and therefore, taking into consideration the declaration of law made by the Hon'ble Supreme Court, referred to above, I am of the view that both the Courts have committed an error in decreeing the suit in favour of the plaintiff.
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27. The arguments advanced by Sri. Ashok Patil, learned counsel appearing for the respondents referring to the judgments stated above cannot be accepted in view of the judgment of the Supreme Court in Basavaraj (supra) as well as the language employed under Order XXIII Rule 3-A of CPC, which bars filing of second suit challenging the compromise decree. I have also carefully considered the prayer made in the plaint, wherein the plaintiff has sought for relief of partition and separate possession in respect of the suit properties, however for the reasons best know to him, has not challenged the compromise decree in O.S.No.45/1966. This aspect of the settled principle of law was ignored by both the Courts below and therefore, I am of the view that there is perversity in the judgment and decree passed by both the Courts below. I am also well aware about the fact that this Court while exercising jurisdiction under Section 100 of CPC will not interfere with the concurrent findings of the Courts below, however, it is not an absolute rule subject to the following exceptions viz.,
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i) The courts below have ignored material evidence or acted no evidence.
ii) The Courts below have drawn wrong inferences from proved facts by applying the law erroneously.
iii) The Courts have wrongly cast the burden of proof and decision based on no evidence.
iv) If the judgment and decree passed by the Courts below suffer from perversity (see:2016 3 SCC 78).
v) If the judgment and decree passed by the Courts below is contrary to settled principle of law by appellate Courts.
28. It is also to be noted that though the defendants have raised plea in the written statement that the suit is not maintainable in view of compromise decree in O.S.No.45/1966, both the Courts below ought to have considered the scope and ambit of Order XXIII Rule 3-A of CPC.
29. It is pertinent to mention here that on 21.04.2025 Hon'ble Supreme Court in the case of
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 Manjunath Tirakappa Malagi and another v.
Gurusiddappa Tirakappa Malagi (Dead through LRs)19 at paragraph 11 and 12 reads as under:
"11. Also, a compromise decree cannot be challenged by filing a fresh suit as there is a bar on filing a fresh suit challenging the consent decree on the ground of the legality of the compromise under Order 23 Rule 3A of CPC, which reads as follows:
"3-A. Bar to suit.-- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."
12. The only remedy against a compromise decree is to file a recall application. This Court in Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566 summed up the position of law as follows:
"17. 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 19 2025 SCC OnLine SC 835
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 specific bar contained in Section 96(3) CPC20.
(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) of 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 3-A.
(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 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, 20 Section 96(3) of CPC: No appeal shall lie from a decree passed by the Court with the consent of parties.
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 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. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made..."
(Emphasis Provided) Thus, even if we accept the contention of the appellants that their father was coerced by his brothers and father (appellants' grandfather) to enter into a compromise, which led to the passing of the consent decree, a fresh suit is still not a valid remedy. In that situation, the appellants' father should have filed a recall application before the Court that had passed the decree. The appellants' father has never done so! Moreover, he had admitted the consent decree and never questioned its validity."
30. Considering the aforementioned dictum of the Hon'ble Supreme Court, reiterating the scope and ambit of Order XXIII Rule 3-A of CPC, I am of the opinion that both
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 the Courts below have ignored the aforementioned settled principle of law and therefore, I am of the view that there is perversity in the judgment and decree passed by both the Courts below, which requires to be set aside in these appeals. Hence, the substantial question of law referred to above favours the contesting defendants/ appellants herein and as I have arrived at a conclusion that no second suit is maintainable before the Trial Court, in the circumstances of the case, I have not considered the other arguments advanced by the learned counsels. Hence, I pass the following:
ORDER
i) The appeals are allowed.
ii) Judgment and decree dated 06.04.2016 in R.A.No.9/2013 passed by the Civil Judge, Saundatti and judgment and decree dated 28.03.2013 in O.S.No.104/1995 passed by the Civil Judge and JMFC, Saundatti are hereby set aside.
iii) Judgment and decree dated 06.04.2016 in R.A.No.10/2013 passed by the Senior Civil
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NC: 2025:KHC-D:6829 RSA No. 100633 of 2016 C/W RSA No. 100632 of 2016 Judge, Saundatti and the judgment and decree dated 28.03.2013 in O.S.No.151/1989 passed by the Civil Judge and JMFC, Saundatti are hereby set aside.
iv) Suits in O.S.No.151/1989 (old O.S.No.72/ 1982) and O.S.No.104/1995 are hereby dismissed.
v) In view of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
Sd/-
(E.S.INDIRESH) JUDGE SH, YAN CT-MCK List No.: 1 Sl No.: 34