Jharkhand High Court
Vijay Kumar @ Bijay Das vs Bishnu Mahra on 22 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[ 2025:JHHC:12095 ]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 69 of 2024
1. Vijay Kumar @ Bijay Das, Aged about 55 years,
S/o Late Prahlad Das, Resident of Village: Verwati,
P.O., P.S. & Sub-Division: Madhupur, District:
Deoghar. Permanently residing At Village:
Nawadih, Panchayat: Piprasol, P.O., P.S. & Sub-
Division: Madhupur, District: Deoghar.
2. Ful Kumari Devi @ Fulmati Devi, Aged about 74
years, Wife of Late Triloki Das, Resident of Village:
Goithadih, P.O. & P.S.: Devipur, Sub-Division &
District: Deoghar.
3. Sudhir Das @ Sudhir Mahra, Aged about 55
years
4. Kailash Das @ Kailash Mahra, Aged about 44
years,
Sl. Nos. 3 & 4 are sons of Late Ganesh Mahra
and residents of Village: Bherwa, P.O., P.S. & Sub-
Division: Madhupur, District: Deoghar.
5. Anchala Devi, Aged about 58 years, Wife of Late
Rameshwar Das, Resident of Aamtalla, Bherwa,
P.Ο., P.S. & Sub-Division: Madhupur, District:
Deoghar.
6 Ful Kumari Devi, Aged about 58 years, Wife of
Late Jaydeo Mahra,
7. Deepak Das, Aged about 36 years
8. Rahul Das, @ Rahul Kumar Das, Aged about 22
years
SI. No. 7 & 8 sons of Late Jaydeo Mahra.
Sl. No. 6 to 8 residents of Village: Bherwa,
P.O., P.S. & Sub-Division: Madhupur, District:
Deoghar.
9. Bulu Devi @ Sangita Devi, Aged about 32 years,
Wife of Sachin Das, Resident of Village: Gonariya,
P.O.: Pacharpa, P.S.: Pathrole, Sub-Division:
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[ 2025:JHHC:12095 ]
Madhupur, District: Deoghar.
10. Sujata Devi @ Sujata Kumari, Aged about 27
years, Wife of Sri Rajesh Das, Resident of Village:
Beni Khijuria, P.O.: Chandih, P.S.: Kunda, Sub-
Division & District: Deoghar.
11. Bhudeb Mahra @ Bhudeb Das, Aged about 52
years
12. Nandeb Mahra @ Nandeb Das, Aged about 51
years
13. Govind Mahra @ Govind Das, Aged about 36
years
Sl. Nos. 11 to 13 sons of Pabrit Mahra and
residents of Village: Bherwa, P.O., P.S. & Sub-
Division: Madhupur, District: Deoghar.
14. Mundrika Devi, Aged about 48 years, Wife of
Sanu Das, Resident of Village: Lerwa, P.O. & P.S.:
Pathrole, Sub-Division: Madhupur, District:
Deoghar.
..... ... Petitioners
Versus
1. Bishnu Mahra, Son of Falo Mahara, Resident of
Village: Bherwa, P.O., P.S. & Sub-Division:
Madhupur, District: Deoghar.
2. Kesio Devi Devi, Wife of Late Tinkori Das,
Resident of Village: Bherwa, P.O., P.S. & Sub-
Division: Madhupur, District: Deoghar.
3. Devki Devi, Wife of Lolin Das, Resident of
Village: Dhak Dhaka, P.O.: Kasathi, P.S.: Devipur,
Sub-Division & District: Deoghar.
..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Vishal Kumar Tiwary, Advocate.
: Mr. Manjeet Kumar Choudhary, Advocate.
: Mr. Imran Beig, Advocate.
For the O.P. Nos. 1 & 2 : Mr. Onkar Nath Tewary, Advocate.
: Mr. Shahid Yunus, Advocate.
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[ 2025:JHHC:12095 ]
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07/ 22.04.2025 Heard Mr. Vishal Kumar Tiwary, learned counsel appearing
for the petitioners and Mr. Onkar Nath Tewary, learned counsel appearing for the O.P. Nos. 1 and 2.
2. It appears that notice upon O.P. No. 3 has been validly served and in spite of that he has not appeared and with a view to provide one more opportunity to the O.P. No. 3, the matter was adjourned on 25.02.2025, in spite of that he has chosen not to appear. Today, on repeated calls, nobody has responded on behalf of O.P. No. 3, as such, this petition is being heard in absence of O.P. No. 3.
3. This petition has been filed under Article 227 of the Constitution of India, wherein prayer has been made for setting aside the order dated 22.11.2023, passed in Miscellaneous Civil Application No. 46 of 2022 [arising out of Original Suit No. 51 of 2022], by the learned Civil Judge (Sr. Div.)-I, Madhupur, whereby, the petition filed under Order-VII Rule 11(d) of the CPC has been rejected by the learned court.
4. Mr. Vishal Kumar Tiwari, learned counsel appearing for the petitioners submits that O.P. No. 1 namely Bishnu Mahra has instituted Original Title Suit No. 5 of 2020 before the Court of Settlement Officer, Dumka, pursuant to that and later on for proper adjudication of the matter, the same was referred before the Civil Court and was renumbered as Original Suit No. 51 of 2022. He submits that in the said suit, the prayer was made for an adjudication of the suit Partition-cum- Family Arrangement Deed dated 16.06.1980, vide No. 2443 be declared void document and further for alleged Partition Deed dated 09.08.1983 vide No. 2884 be declared void, illegal and cancelled. Further for the Compromise Deed dated 29.11 1983, passed in Title Suit No. 127 of 1980, by Settlement Officer be declared void, illegal, cancelled and not binding upon the plaintiff and for giving possession to the plaintiff in Schedule-E property by evicting the Defendant 1st Party and further for permanent injunction be granted against the defendant and restraining -3- [ 2025:JHHC:12095 ] the defendant from making any type of construction in the suit property.
5. Learned counsel further submits that in the said plaint, it has been averred that the plaintiff and the defendants are very common ancestors and the genealogy has been made in the plaint and he refers to the plaint, contained in Annexure-1. He also submits that after notice, the defendant Nos. 1, 2, 3, 4, 5, 8, 9, 10, 13, 14 and 15 have appeared and filed their joint written statement, wherein the defendants have controverted the stand taken by the plaintiff in his plaint and in detail the entire Written Statement has been filed before the learned court. He submits that in that case, an application under Order VII Rule 11(d) of the C.P.C. was filed by the petitioners herein, who are the defendants in the Original Suit, with prayer that the suit appears from the statement in the plaint be barred by law. He further submits that from the plaint, it is crystal clear that the prayer is made for declaration that the compromise decree dated 29.11.1983, passed in Title Suit No. 127 of 1980 by Assistant Settlement Officer, Dumka be declared void, illegal, cancelled and not binding upon the plaintiffs, as the plaintiff has admitted in Para- 6 that he was aged about 6 years, when his father had died prior to 1980.
6. Learned counsel appearing for the petitioners draws the attention of the court to Order-XXIII Rule-3A of the CPC and submits that no suit will lie against any consent decree. By way of referring Articles 56 and 58 of the Limitation Act, he submits that the plaintiffs are debarred of challenging the family arrangement of 1980 and partition deed of 1983, as it has been admitted by the plaintiff that he was represented by his grandfather and as such, the element of knowledge for the purpose of instituting the suit, as occurred to him in the year 1983 itself and the suit has been instituted after the lapse of 36 years, which is not maintainable under the law. He submits that law on the issue in question is well settled and he draws the attention of the court to the plaint and submits that the compromise decree has been -4- [ 2025:JHHC:12095 ] challenged. According to him, the clever drafting of the plaint, if barred under the provision of law, cannot be entertained and only remedy is left open to such party to file a petition, before the same court, who has passed the order, on the basis of compromise. To buttress his argument, he relied in the case of Shree Surya Developers and Promoters Versus N. Sailesh Prasad & Ors., reported in (2022) 5 SCC 736, wherein the Hon'ble Supreme Court in paras- 9 to 12 has held as follows:-
"9. The earlier decisions of this Court have also been dealt with by this Court in paras 53 to 57 as under: (R. Janakiammal case [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 [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 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 -5- [ 2025:JHHC:12095 ] 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 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 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 -6- [ 2025:JHHC:12095 ] 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:
"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 [Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566] , R.V. Raveendran, J. 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.
(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, -7- [ 2025:JHHC:12095 ] 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 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 [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 -8- [ 2025:JHHC:12095 ] suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 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 the provisions of Order 23 Rule 3-ACPC. 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 11CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3- ACPC. 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 -9- [ 2025:JHHC:12095 ] 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 [Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566] as well as Banwari Lal [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 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 [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.
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 23CPC put a -10- [ 2025:JHHC:12095 ] 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 3CPC 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 3CPC 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 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 -11- [ 2025:JHHC:12095 ] 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 that bogus litigation will end at the earlier stage.
11.2. In T. Arivandandam v. T.V. Satyapal [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 11CPC 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 10CPC. An activist Judge is the answer to irresponsible law suits."
11.3. In Ram Singh v. Gram Panchayat Mehal Kalan [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.
12. If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of gift deed, declaration for DGPA and deed of assignment-cum-DGPA, the said reliefs can be granted only if the compromise -12- [ 2025:JHHC:12095 ] decree dated 13-1-2016 passed in OS No. 1750 of 2015 is set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever drafting wants to get his suit maintainable, which otherwise would not be maintainable questioning the compromise decree. All the aforesaid reliefs were subject- matter of earlier suits and thereafter also subject-matter of OS No. 1750 of 2015 in which the compromise decree has been passed. Therefore, it is rightly held by the trial court that the suit in the present form and for the reliefs sought would be barred under Order 23 Rule 3-ACPC and therefore the trial court rightly rejected the plaint in exercise of powers under Order 7 Rule 11(d)CPC. The High Court has erred in setting aside the said order by entering into the merits of the validity of the compromise decree on the ground that the same was hit by Order 32 Rule 7 CPC, which was not permissible at this stage of deciding the application under Order 7 Rule 11CPC and the only issue which was required to be considered by the High Court was whether the suit challenging the compromise decree would be maintainable or not."
7. Relying on the above judgment, he submits that the Hon'ble Supreme Court has appreciated and taken note of the earlier judgments in the said case and has held that if a consent decree is there, separate suit will not lie and only remedy is left open to such person to file a petition before the same court, which has passed the order on the basis of compromise.
8. On the same issue, learned counsel appearing for the petitioners further relied in the case of Manjunath Tirakapaa Malagi & Anr. Versus Gurusiddappa Tirakappa Malagi (Dead through Lrs.), reported in (2025) INSC 517, where in paras-10, 11 and 12, the Hon'ble Supreme Corut has held as follows:-
"9. Through the decree dated 02.08.2002 passed in suit (No.219/1998) filed by the -13- [ 2025:JHHC:12095 ] appellants, the entire share of the appellants' father, which he had received in the 1974 partition and by compromise decree, was further partitioned amongst the appellants and their father. This decree was never challenged by the appellants.
Nevertheless, they filed a fresh suit in the year 2003 seeking cancellation of the compromise decree and further seeking partition of the suit property. The appellants' ground for challenging the said compromise decree is that the appellants' father was coerced by his brothers and father to enter into the said compromise.
10. Let us discuss the law governing a consent decree. Order 23 Rule 3 of CPC, which deals with compromise decree, reads as follows: "3. Compromise of suit.-- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit: Provided that where it is alleged by one party and 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 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"
Thus, a reading of the above provision -14- [ 2025:JHHC:12095 ] makes it clear that before passing a decree on the basis of a compromise, the Court has to satisfy itself that the suit has been adjusted by a lawful compromise. Once the Court passes a compromise decree after such a satisfaction, the decree cannot be challenged in an appeal as no appeal lies against a compromise decree.
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 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. (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 -15- [ 2025:JHHC:12095 ] 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..."
(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."
9. Relying on the above judgment, he submits that the law is well settled in view of that the learned court has erred in passing the said order, as such, the impugned order may kindly be set aside.
10. Per contra, Mr. Onkar Nath Tewari, learned counsel appearing for the O.P. Nos. 1 and 2 has opposed the prayer and submits that only that issue is not the subject of the suit and there are multiple issues and in view of that the learned court has already framed the issues and one of the issue was with regard to maintainability of Order- VII, Rule-11(d) of CPC, as such, the learned court has rightly passed the order. He admits that the plaintiff was minor and he was being represented through his grandfather in the compromise petition in the year 1980 and further in the year 1983, the distant relative has represented the plaintiff and Shankar Mahra was also alive in the year 1983, who was the grand-father of the plaintiff. According to him, the -16- [ 2025:JHHC:12095 ] multiple prayers are made in the suit and in view of that the said suit was maintainable. He further submits that for deciding the petition under Order-VII Rule-11(d) CPC, only the averments are required to be read of the plaint and any addition and subtraction are not the requirement of law and even the evidence is not required to look into and to buttress his argument, he relied in the case of Kamala and Ors. Versus K.T. Eshwara Sa and Ors., reported in (2008) 4 Supreme 204, wherein the Hon'ble Supreme Court in paras-15 and 16 has held as follows:-
"15. Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another.
16. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision.
The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question -17- [ 2025:JHHC:12095 ] involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject matter thereof, the application for registration of plaint should be entertained."
11. Relying on the above judgment, he submits that in view of the above facts, the learned court has rightly passed the said order.
12. Learned counsel appearing for the O.P. Nos. 1 and 2 submits that the disputed questions cannot be decided in the petition under Order-VII Rule-11(d) of the CPC and the rules of limitations are not meant to destroy the rights of the parties do not resort to dilatory tactics, but seek their remedy promptly and to buttress his argument, he relied in the case of Popat and Kotecha Property Versus State Bank of India Staff Association, reported in 2005 Supreme (MP) 899. Relying on this judgment, he submits that the case of the O.P. Nos. 1 and 2 are fully covered in view of that this petition may kindly be dismissed.
13. In view of the above submissions of the learned counsel appearing for the parties, the court has gone through the materials on record including the plaint as well as the petition filed under Order-VII -18- [ 2025:JHHC:12095 ] Rule-11(d) CPC. In the said plaint, only ground is taken to the effect that no suit will lie to set aside the decree on the ground that the compromise, on which, the decree is based was not lawful and Order-
XXIII Rule-3A CPC was referred to and further Articles 56 and 58 of the Limitation Act were referred on the point of limitation. Apart from that there is nothing stated, which is beyond the plaint. In the plaint, the prayer is made for declaration of the compromise decree 29.11.1983 passed in Title Suit No. 127 of 1980 void, illegal and not binding upon the plaintiff and the other two prayers are consequential to the said compromise petition, i.e. for alleged partition deed dated 09.08.1983 be declared void and illegal. Thus, for the compromise decree of the year 1983, the suit has been instituted in the year 2020, which was transferred by the Settlement Officer, Dumka to the Civil Court, which was re-numbered in the year 2022 and if such a situation is there, the court is required to consider Order-XXIII Rule-3A of the CPC, which 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."
14. In view of the above provision, it is crystal clear 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 and this aspect and further amendment were the subject matter before the Hon'ble Supreme Court in the case of R. Janakiammal Versus S.K. Kumarasamy, which has been considered by the Hon'ble Supreme court in the case of Sree Surya Developers and Promoters (Supra) at para-9, as quoted hereinabove.
15. In Order-XXIII Rule-3 of the CPC, the explanation has also been added, which is as follows:-
"[Explanation.--An agreement or
compromise which is void or voidable
-19-
[ 2025:JHHC:12095 ]
under the Indian Contract Act, 1872
(9 of 1872), shall not be deemed to be lawful within the meaning of this rule.]"
16. In view of the above explanation, the purpose and object of amending the Act appears to compel the party challenging the compromise to question the same before the court, which has recorded the compromise in question. In view of Order-XXIII of the CPC, to avoid the multiplicity of the suit and prolonged litigation, a specific bar was made and prescribed in Rule-3A in respect of institution of a separate suit for setting aside a decree on the basis of a compromise saying. As such, the only remedy on a consent decree is available to the aggrieved party on the basis of the compromise decree to file a petition before the learned court, who has allowed the compromise decree.
17. Admittedly, for the compromise decree of the year 1983, the suit was instituted in the year 2020, which was further re-numbered in the year 2022, as such, certainly it was barred by limitation and if it was barred by limitation, Order-VII Rule-11(d) of CPC will come into play.
18. There is no doubt that for deciding the cause of action, the bundle of facts are required to be considered and for that by way of leading evidence that can be decided. However, if a petition is coming within the purview of Order-VII Rule-11(d) of CPC, the said petition is required to be decided without appreciating any evidence and that cannot be thrown away only on the ground that only the suit has been instituted.
19. So far as the judgment relied by Mr. Onkar Nath Tewary, who is appearing for the O.P. Nos. 1 and 2 in the case of Kamala & Ors. (Supra) is concerned, the court is in agreement that for deciding a petition under Order-VII Rule-11(d) CPC, the court is not required to look into any evidence for deciding the said petition except the plaint.
-20-[ 2025:JHHC:12095 ] This court finds that what has been discussed hereinabove, no evidence has been tried to be made in the application made by the petitioners herein in the petition filed under Order-VII Rule-11(d) CPC and it has been filed only on the basis of the plaint, thus the said judgment in the facts of the present case is not helping the O.P. Nos. 1 and 2.
20. Further the learned counsel appearing for the O.P. Nos. 1 and 2 has relied in the case of Popat and Kotecha Property (Supra) is also on the different footing and certainly the disputed questions cannot be decided at the time of considering the petition Order-VII Rule-11(d) CPC for rejection of the plaint. As such, the said judgment is further not helping the O.P. Nos. 1 and 2.
22. What has been discussed hereinbelow, it is crystal clear that without taking recourse of explanation of Order-XXIII Rule-3(A) of the CPC, a separate suit has been instituted for declaring the compromise decree as null and void and further the said suit is barred by limitation. In view of that the court finds that the learned court's order is not in accordance with law. As such, this CMP succeeds.
23. Accordingly, the order dated 22.11.2023, passed in Miscellaneous Civil Application No. 46 of 2022 [arising out of Original Suit No. 51 of 2022], by the learned Civil Judge (Sr. Div.)-I, Madhupur, whereby, the petition filed under Order-VII Rule 11(d) of the CPC has been rejected by the learned court, is hereby, set aside. Consequently, Miscellaneous Civil Application No. 46 of 2022 is allowed and the Original Suit No. 51 of 2022, is hereby, dismissed, being barred by limitation as well as on law.
24. However, it is observed that this court has not expressed anything on merits upon the validity of the compromise decree and the same shall have to be decided and considered by the court, if O.Ps. herein choose to make an application under Order-XXIII Rule-3A CPC, in light of the explanation before the same court, who has passed -21- [ 2025:JHHC:12095 ] the order on the compromise decree and if such a petition is preferred, the learned concerned court will decide the same in accordance with law without being prejudiced to this order.
25. This CMP is allowed accordingly and disposed of in the above terms.
(Sanjay Kumar Dwivedi, J.) Amitesh/-
[A.F.R.] -22-