Karnataka High Court
Basanagouda S/O.Malakajappa Alagond vs Malakajappa S/O Revansiddappa Alagond on 9 July, 2024
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NC: 2024:KHC-K:4719
RSA No. 7050 of 2010
C/W RSA No. 7366 of 2010
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7050 OF 2010
(DEC/INJ/POSS)
C/W
REGULAR SECOND APPEAL NO.7366 OF 2010(DEC/INJ)
IN RSA NO.7050/2010:
BETWEEN:
BASANAGOUDA
S/O MALAKAJAPPA ALAGOND
AGED ABOUT: 30 YEARS, OCC: AGRICULTURE
R/O: GANESH NAGAR,
NEAR IBRAHIMPUR RAILWAY STATION
BIJAPUR-586101.
Digitally signed ...APPELLANT
by SWETA
KULKARNI (BY SRI PRAVEEN KUMAR RAIKOTE, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. MALAKAJAPPA
S/O REVANASIDDAPPA ALAGOND
AGED ABOUT 60 YEARS,
OCC: AGRICULTURE
R/O: GANESH NAGAR,
NEAR IBRAHIMPUR RAILWAY STATION
BIJAPUR.
2. VIRUPAXAPPA A/F SANGAPPA HARAGABAL
SINCE DECEASED BY LR'S.
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NC: 2024:KHC-K:4719
RSA No. 7050 of 2010
C/W RSA No. 7366 of 2010
(a) SMT. SUREKHA W/O VIRUPAKSHAPPA
AGE: 38 YEARS, OCC: HOUSEHOLD
(b) SRI REVANSIDDAPPA S/O VIRUPAKSHAPPA
AGE: 20 YEARS, OCC: AGRICUALTURE
BOTH ARE R/O. MANAGULI VILLAGE,
TQ. BASAVANA BAGEWADI,
DIST. VIJAYAPUR-586122.
...RESPONDENTS
(R1, R2(a) AND R2(b) ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT
OF PRINCIPAL DISTRICT JUDGE, BIJAPUR IN R.A. NO.59/2007
DATED 20.11.2009 AND ALLOW THE SUIT BY CONFIRMING THE
JUDGMENT AND DECREE PASSED BY CIVIL JUDGE (SR.DN.) AT
BASAVAN BAGEWADI O.S. NO.275/2003 DATED 17.09.2007.
IN RSA NO.7366/2010:
BETWEEN:
1. VIRUPAXAPPA
S/O SANGAPPA HARAGBAL
SINCE DECEASED BY LR'S.
(a) SMT. SUREKHA
W/O VIRUPAKSHAPPA HARAGABAL
AGED ABOUT 38 YEARS, OCC: HOUSE WIFE
(b) SRI REVANASIDDAPPA
S/O VIRUPAKSHAPPA HARAGABAL
AGED ABOUT 20 YEARS,
BOTH ARE R/O. MANAGULI VILLAGE,
TQ. BASAVANA BAGEWADI,
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NC: 2024:KHC-K:4719
RSA No. 7050 of 2010
C/W RSA No. 7366 of 2010
DIST. VIJAYAPUR-586122.
...APPELLANTS
(BY SRI AJAYKUMAR A.K., ADV. FOR
SMT. RATNA SHIVAYOGIMATH, ADVOCATE)
AND:
1. BASANAGOUDA
S/O MALAKAJAPPA ALAGOND
AGE: 28 YEARS, OCC: AGRICULTURE
R/O: GANESH NAGAR,
NEAR IBRAHIMPUR RAILWAY STATION
BIJAPUR-584106.
2. MALAKAJAPPA
S/O REVANASIDDAPPA ALAGOND
AGE: 61 YEARS,
OCC: AGRICULTURE
R/O: GANESH NAGAR,
NEAR IBRAHIMPUR RAILWAY STATION
BIJAPUR-584106.
...RESPONDENTS
(BY SRI PRAVEEN KUMAR RAIKOTE, ADV. FOR R1;
R2 SERVED)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO
ALLOW THIS REGULAR SECOND APPEAL AND TO SET ASIDE
THE JUDGMENT AND DECREE DATED 20.11.2009, PASSED BY
THE LEARNED PRINCIPAL DISTRICT JUDGE, BIJAPUR, IN R.A.
NO.59/2007, ALLOWING THE APPEAL IN PART, MODIFYING THE
JUDGMENT AND DECREE DATED 17.09.2007, PASSED BY THE
LEARNED CIVIL JUDGE (SR.DN.) BASAVANBAGEWADI IN O.S.
NO.275/2003.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-K:4719
RSA No. 7050 of 2010
C/W RSA No. 7366 of 2010
JUDGMENT
RSA No.7050/2010 is preferred by the plaintiff assailing the legality and correctness of the judgment and decree dated 20.11.2009 passed in R.A.No.59/2007 on the file of the Principal District Judge, Vijayapur (for short, 'the first appellate Court') modifying the judgment and decree dated 17.09.2007 passed in O.S.No.275/2003 on the file of the Civil Judge (Sr.Dn.), Basavan Bagewadi (for short, 'the Trial Court').
2. RSA No.7366/2010 is preferred by defendant No.2 assailing the judgment and decree of the first appellate Court to the extent of allowing the appeal in part by modifying the judgment and decree of the Trial Court.
3. Parties herein are referred to as per the ranking before the Trial Court for the sake of convenience.
4. This Court, while admitting the appeal on 14.06.2016, has framed the following substantial question of law:
-5-NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 "Whether the First Appellate Court could exercise its power to mould the relief in the above fashion?"
5. While the arguments have been heard by the learned counsel on both sides, this Court has framed the following additional substantial questions of law which read as under:
"(i) Whether the suit for declaration and permanent injunction in the present form is maintainable, when the plaintiff is seeking right from defendant No.1 who has entered into a compromise/consent decree?
(ii) Whether a separate suit is maintainable challenging or in the guise of challenging the compromise/ consent decree entered into by the father of the plaintiff namely defendant No.1?"
6. Sri Praveen Kumar Raikote, learned counsel for the appellant in RSA No.7050/2010 and for respondents in RSA No.7366/2010 and Sri Ajaykumar A.K., learned counsel appearing on behalf of Smt. Ratna Shivayogimath, learned counsel for the appellants in RSA No.7366/2010 -6- NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 have been heard on the substantial questions of law framed by this Court.
7. Suit for declaration that the property bearing C.B.No.729 measuring 26 acres 29 guntas of Managoli village, Basavan Bagewadi taluk (for short, 'the suit property') is the ancestral property of the plaintiff and defendant No.1 and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property and in alternative, for possession of eastern portion of 13 acres 10 guntas of land in the suit property from the defendants.
The plaintiff is the son of defendant No.1 and defendant No.2 is the brother of defendant No.1 and according to the plaintiff the suit property is ancestral property of the plaintiff and defendant No.1 and they are in joint possession and enjoyment. The revenue records indicating the name of defendant No.2 who is not concerned to the joint family or the suit property and -7- NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 name of defendant No.2 in the revenue records is without any right, title or interest in the suit property.
8. On summons, defendant No.1 remained exparte. Defendant No.2 appeared and filed written statement inter alia denying that the suit property is the ancestral property of defendant No.1. Defendant No.2 contended that defendant Nos.1 and 2 are the brothers and after the death of husband of Savantrevva, the maternal grand mother of the defendants, during the minority of defendant No.2, he was given in adoption to his grandmother Savantrevva and defendant No.2 lived along with defendant No.1 in his genetic father's house. It is stated that Revansiddappa - father of defendant Nos.1 and 2 was tenant of the suit property and occupancy rights were granted in his name and the suit property is the self acquired property of the father of defendant Nos.1 and 2.
It is stated that his father Revansiddappa bequeathed the eastern portion of suit property measuring 13 acres 10 guntas in favour of defendant No.2 under the Will dated -8- NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 18.09.1988 and accordingly the name of defendant No.2 is mutated in the revenue records. Defendant No.1 objected for the entry and by the intervention of the elderly members, compromise was arrived between defendant Nos.1 and partition deed was executed, accordingly, defendant No.1 consented with the Will executed by his father and relinquished his rights on the eastern portion of suit property viz. 13 acres 10 guntas and one house in favour of defendant No.2. It is stated that O.S.No.106/1993 was filed by defendant No.2 for declaration that he is the owner of eastern portion of the suit property measuring 13 acres 10 guntas and northern portion of the house bearing MPC No.1071 and for permanent injunction against defendant No.1. In the said suit, compromise was entered and defendant No.2 was held to be the owner in possession of the eastern portion of the suit property measuring 13 acres 10 guntas. Now the plaintiff, in collusion with defendant No.1, has filed the present suit.
-9-NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010
9. The Trial Court, based on the pleadings, framed the following issues:
"ISSUES
1. Whether the plaintiff proves that the suit property is joint family property of plaintiff and defendant No.1?
2. Whether the defendant No.2 proves that himself and defendant No.1 succeeded to suit property by virtue of Will dated 18.09.1988 executed by deceased Revansiddappa?
3. Whether the defendant No.2 proves that the suit property and other properties were already partitioned as claimed in para-10 of W.S.?
4. Whether the suit is barred by limitation?
5. Whether the suit is properly valued and Court fee paid is proper and correct?
6. Whether the plaintiff is entitled for the relief claimed in the suit?
7. What order or decree?
ADDL. ISSUE NOS.1 AND 2 FRAMED ON
15.11.2005
1. Whether the present suit is not maintainable without seeking the relief of declaration that the Decree in O.S. No.106/1993 is not binding on the plaintiff?
2. Whether the present suit is hit by the Principles of Respondent-judicata?
ADDL. ISSUE FRAMED ON 03.08.2007
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010
1. Whether plaintiff is entitled to possession of suit land from Defendant No.2?"
10. The Trial Court, on the basis of the pleadings, oral and documentary evidence, arrived at a conclusion that:
(i) the plaintiff has proved that the suit property is joint family property of plaintiff and defendant No.1;
(ii) defendant No.2 failed to prove that himself and defendant No.1 succeeded to the suit property by virtue of the Will dated 18.09.1988;
(iii) defendant No.2 failed to prove that the suit property and other properties were already partitioned as claimed in para-10 of the written statement;
(iv) defendant No.2 failed to prove that the suit of the plaintiff is barred by limitation;
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010
11. By answering additional issue Nos.1 and 2, the Trial Court held that the suit of the plaintiff is maintainable without seeking relief of declaration and decree in O.S.No.106/1993 is not binding on the plaintiff and further held that the suit is not hit by the principles of res judicata. By the judgment and decree, the Trial Court held as under:
(i) declared that the suit property is the ancestral joint family property of the plaintiff and defendant No.1;
(ii) relief of permanent injunction was rejected since the plaintiff is not in possession of the entire suit property; and
(iii) ordered and decreed that the plaintiff is entitled for possession of 13 acres 10 guntas of the land in suit land C.B.No.729 towards the eastern side.
12. Aggrieved, defendant No.2 preferred appeal before the first appellate Court. The first appellate Court,
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 while re-considering the oral and documentary evidence, modified the judgment and decree of the Trial Court holding that:
(i) the plaintiff's suit is partly decreed declaring that 2/3rd share in the suit property is the joint family property of the plaintiff and defendant No.1 which comes around 17 acres 32 guntas and that the plaintiff is entitled to get partition and separate possession of 2/3rd share of the suit property;
(ii) the prayer of the plaintiff for relief of permanent injunction stood confirmed since the plaintiff was not in possession.
13. Aggrieved by the modification, the plaintiff is before this Court in RSA No.7050/2010 and moulding the relief of granting share to the plaintiff. On the ground that the issue regarding maintainability of suit was not considered by the Trial Court and the first appellate Court,
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 the defendant No.2 is before this Court in RSA No.7366/2010.
14. Learned counsel for the appellant in RSA No.7050/2010 would urge the following grounds:
(i) that the suit property is the joint family property of the plaintiff and defendant No.1 and defendant No.2 is not concerned either to the joint family of the plaintiff and defendant No.1 or to the suit property;
(ii) that the suit seeking declaration and possession was maintainable since the plaintiff was not party in O.S.No.106/1993 and seeking for declaration that it is not binding on the plaintiff would not arise.
15. Learned counsel for the appellants in RSA No.7366/2010 submits that defendant No.2 had filed suit in O.S.No.106/1993 for declaration that he was the owner to eastern portion of the suit property and northern
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 portion of house bearing MPC No.1071 and for permanent injunction against defendant No.1 - brother of defendant No.2 and in the said suit defendant Nos.1 and 2 entered into a compromise and defendant No.2 was declared as owner in possession of the eastern portion of the suit property as well as the northern portion of the house and now the plaintiff is not entitled to claim any relief through defendant No.1 which order has already attained finality and the suit in the present form in the guise of challenging the compromise decree entered into between defendant Nos.1 and 2 and their mother is not maintainable before this Court.
16. In support of his contention, learned counsel placed reliance of the judgment of the Apex Court in the case of Pushpa Devi Bhagat (Dead) Through LR. Sadhna Rai (Smt) vs. Rajinder Singh & Ors.1 (Pushpa Devi Bhagat).
1(2006) 5 SCC 566
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010
17. The contesting parties, who are the appellants in both the appeals, have been heard and the judgment and decree of the Courts below, including the original records, are perused.
18. The plaint in O.S.No.106/1993 which is filed by defendant No.2 against defendant No.1 - Malkajappa and his mother Sangawwa is produced at Ex.D-10. The prayer sought by the plaintiff in the said suit is to declare that the plaintiff is the owner of the suit land i.e., eastern portion measuring 13 acres 10 guntas out of R.S.No.729 and the house property bearing MPC No.1071 of Managuli village and for consequential relief of permanent injunction. The plaintiff (defendant No.2 herein) and the defendant No.1 and Sangawwa in the said suit entered into a compromise by filing an application under Order 23 Rule 3 CPC which is marked at Ex.D-1. Ex.D-2 is the decree passed in O.S.No.106/1993 disposed of on 27.10.1995 and by the decree the plaintiff therein (defendant. No.2 herein) declared as the owner of the suit land which is eastern 13
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 acres 10 guntas out of R.S.No.729 of Managuli village and the house property bearing MPC No.1071 of Managuli village. Defendant No.1 - Malkajappa was party to the suit in O.S.No.106/1993. Plaintiff, who is the son of Malkajappa, claims through Malkajappa. Order 23 Rule 3 CPC enumerates as under:
"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,
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 unless the Court, for reasons to be recorded, thinks fit to grant such adjournment."
19. Order 23 Rule 3 CPC envisages that where it is proved to the satisfaction of the Court that the suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall order such agreement, compromise to be recorded, and shall pass a decree in accordance therewith.
Further, it is provided that whether defendant satisfies the plaintiff in respect of the whole or in part of the subject matter of the suit, the Court shall order such satisfaction to be recorded and shall pass a decree in accordance therewith.
Order 23 Rule 3A CPC enumerates as under:
"3A. 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."
Rule 3A is added in Order 23 with effect from 01.02.1977 baring any suit to set aside the decree on the ground that
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 the compromise on which the decree is passed was not lawful.
20. Order 23 CPC fell for consideration before the Apex Court in Pushpa Devi Bhagat's case stated supra and the Apex Court at para-17 held that the position that emerges from the amended provisions of Order 23 to be summed up as under:
"(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 of Order 23."
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 The Apex Court held that the remedy available to the party to the 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.
21. Similar issue fell for consideration before the Apex Court in R. Janakiammal vs. S.K. Kumarasamy (Deceased) through Legal Representatives & Ors.2 (R. Janakiammal) wherein the Apex Court at paras-53 and 54 held as under:
"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 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 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, following was laid down:2
(2021) 9 SCC 114
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 "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 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 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 of 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
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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 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
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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 (Dead) Through LR. Sadhna Rai (Smt.) Vs. Rajinder Singh and Ors., (2006) 5 SCC 566, Justice R.V. Raveendran speaking for the Court noted the provisions of Order 23 Rule 3 and Rule 3-A and recorded his conclusions in paragraph 17 in following words:
"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
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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."
The Apex Court in R. Janakiammal's case stated supra, taking the ratio of judgments laid down in contest of Order
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 23 Rule 3 as well as Rule 3A and referring to the judgment of the Apex Court in Pushpa Devi Bhagath's case, has re-
affirmed stating that the only remedy available to the party to a consent decree is to approach the very Court.
22. In a recent decision of the Apex Court in the case of Sree Surya Developers and Promoters vs. N. Sailesh Prasad & Others3 (Sree Surya Developers), the Apex Court while dealing with Order 23 Rule 3A has held in similar terms at paras-8 and 9 which read as under:
"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 R. Janakiammal. 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 3 (2022) 5 SCC 736
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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:
"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 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
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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 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
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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, (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, by an order on an application under the proviso to Rule 3 Order 23.
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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, (2014) 15 SCC 471 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
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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-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."
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56. The judgments of Pushpa Devi as well as Banwari Lal 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, (2020) 6 SCC 629, 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 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,
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 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 separate suit challenging the consent decree has been held to be not maintainable."
23. In the instant case, the prayer sought by the plaintiff is for declaration that the suit property is the ancestral property of plaintiff and defendant No.1 and for possession of eastern 13 acres 10 guntas. The plaintiff claims under defendant No.1 who was a party in O.S.No.106/1993 and defendant No.1 entered into a compromise. The Courts below have not at all considered whether in fact the suit in the present form in the guise of challenging the compromise decree and/or for the relief sought in the suit would be maintainable or not. What was
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NC: 2024:KHC-K:4719 RSA No. 7050 of 2010 C/W RSA No. 7366 of 2010 required to be done by the Courts below was to answer the issue whether an independent suit by the plaintiff claiming under defendant No.1 who entered into consent/compromise decree in O.S.No.106/1993 would be maintainable or not. This crucial aspect has not even been dealt with by the Trial Court or the first appellate Court.
The courts below have fell in error in not considering that the suit of the plaintiff in the present form was not maintainable and accordingly, the substantial questions of law framed by this Court are answered in favour of the defendant No.2 and against the plaintiff.
Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal No.7050/2010 is hereby dismissed.
(ii) The Regular Second Appeal No.7366/2010 is allowed.
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(iii) The judgment and decree of the courts below are set aside. The suit of the plaintiff is dismissed as not maintainable.
Sd/-
JUDGE SWK List No.: 1 Sl No.: 61 CT: VD