Karnataka High Court
Sri G N Lakshmi Narasimha vs Smt V Mala on 7 July, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS SECOND APPEAL NO.72 OF 2019
BETWEEN
SRI.G.N.LAKSHMI NARASIMHA
AGED ABOUT 59 YEARS
SON OF LATE G.S.NARAYANA RAO
NO.3, CAR STREET
DODDABALLAPURA TOWN - 561 203 ...APPELLANT
(BY SRI.V.B.SHIVAKUMAR - ADVOCATE)
AND
1. SMT.V.MALA
AGED ABOUT 46 YEARS
WIFE OF M.SHIVASHANKAR
4TH WARD, DESHADAPET
DODDABALLAPURA TOWN
561 203
2. SRI.M.NAGARAJU
AGED ABOUT 67 YEARS
SON OF MUNIBYRAPPA
NO.11, MANCHAPANA HOSAHALLI
BENGALURU NORTH TALUK
572 129.
3. SRI.P.S.RAGHAVENDRA
AGED ABOUT 62 YEARS
SON OF SRI P.SADASHIVAIAH
2
NO.1233, KUNCHAPPAPET
DODABALLAPURA TOWN
561 203. ...RESPONDENTS
(BY SRI.S.NAGARAJA., ADVOCATE FOR R1;
R2 AND 3 - SERVED)
THIS MSA IS FILED UNDER SECTION 43 RULE 1(U) OF
CPC, 1908 SEEKING CERTAIN RELIEFS.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Sri.V.B.Shivakumar, learned counsel for appellant and Sri.S.Nagaraja, learned counsel for respondent No.1 have appeared in person.
2. For the sake of convenience, the parties are referred to as per their rankings before the Trial Court.
3. The facts of the case are stated as under:
The plaintiff - initiated action against the defendants and sought the relief of declaration of ownership over suit properties and also for a declaration that the alleged 3 Compromise Decree dated:29.03.2014 passed in O.S.No.144/2012 is null and void and the same is not binding on her.
After service of summons, defendants entered appearance and filed their written statement. Based on the pleadings, several Issues were framed and Issue No.7 was treated as Preliminary Issue. In the meanwhile, the third defendant moved an application under Order 7 Rule 11 (a) and
(d) of the Code for rejection of plaint on the ground that the suit is barred by law. The Trial Court allowed the application vide order dated:14.06.2018 and held that the suit is not maintainable. The order was challenged before the Appellate Court and the Appellate Court vide order dated:29.07.2019 allowed the appeal and remitted the matter to the Trial Court.
Hence, this appeal is filed on several grounds as set out in the Memorandum of appeal.
4. Learned counsel for appellant and respondent No.1 have urged several contentions. 4
Sri.V.B.Shivakumar., learned counsel for appellant has relied upon the following decisions.
1. TRILOKI NATH SINGH VS. ANIRUDH SINGH (D) THR. LRS - AIR 2020 SC 2111.
2. R.JANAKIAMMAL VS. S.K.KUMARASWAMY (DECEASED) THROUGH LEGAL REPRESENTATIVES - AIRONLINE 2021 SC 329.
3. SMT.LAKSHAMAMMA AND OTHERS VS. T.H.RAMEGOWDA AND OTHERS - 2015 (5) KCCR 631 (DB).
4. 'SREE SURYA DEVELOPERS AND PROMOTERS VS. N.SAILESH PRASAD AND OTHERS' & 'RAJA PUSHPA PROPERTIES PVT. LTD., VS. N.SAILESH PRASAD AND OTHERS' - (2022) 5 SCC 736.
5. Heard the contentions urged on behalf of parties and perused the appeal papers with care.
The suit is one for declaration to declare that Compromise decree in O.S.No.144/2012 is not binding on the plaintiff.
5
The primary contention of the appellant is that the present suit is hit by Order 23 Rule 3A of the Code of Civil Procedure. Hence, it is appropriate to refer to Order 23 Rule 3A of the Code which reads as under:
ORDER 23 RULE 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.
A bare perusal of the above provision would make it clear that a suit challenging the Compromise Decree is completely barred under Order 23 Rule 3 A, read with Explanation to Order 23 Rule 3 CPC.
As is well known that Rule 3A bars filing of a suit for cancellation of a compromise decree on the ground of fraud, misrepresentation, coercion etc., after the amendment of Order 23 in 1976, the only forum left to the aggrieved party seeking to challenge the compromise decree is the forum or the Court which passed such decree on the basis of the 6 compromise. Therefore, no independent suit challenging the compromise on the ground of fraud or otherwise is competent in view of specific bar provided in Rule 3A of Order 23 of the Code.
The law is also well settled by the Apex Court. The Apex Court in catena of decisions has held that to challenge the compromise decree on the ground that decree is/was not lawful i.e., void or voidable, party to consent decree based on compromise has to approach same Court, which recorded compromise. Separate suit challenging consent decree is not maintainable.
While addressing argument, learned counsel for respondent No.1 submits that the plaintiff is a stranger to the compromise decree hence suit filed by her is maintainable.
I am unable to accept the said contention for the simple reasons that it is not open for a stranger to file a separate suit.7
Reverting to the facts of the case, the plaintiff is also a stranger to the compromise decree and in view of bar under Order 23 Rule 3 A, the suit filed is not maintainable.
I may venture to say that the Appellate Court has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order passed by the Appellate Court is unsustainable in law. The Trial Court is justified in passing the order.
Substantial question of law is answered accordingly. Resultantly, the Miscellaneous Second Appeal is allowed. The Judgment and Decree in R.A.No.10031/2018, dated:29.07.2019 passed by IV Additional District and Sessions Judge, Doddaballapura is set aside. The order of the Trial Court is confirmed.
In the last resort, Sri.S.Nagaraj., counsel for respondent submits that liberty may be granted to the first respondent to agitate her remedy in accordance with law. 8
Submission is noted.
The first respondent may agitate her remedy if the same is available in law.
Sd/-
JUDGE GVP