Allahabad High Court
Smt. Ramwati vs Smt. Shakuntala on 28 March, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 RESERVED A.F.R. Case :- SECOND APPEAL No. - 482 of 2008 Appellant :- Smt. Ramwati Respondent :- Smt. Shakuntala Counsel for Appellant :- Prakash Gupta,Ashish Gupta, K.D.Tripathi, Mohd Mohiuddin Siddiqui Counsel for Respondent :- Arun Kumar Singh Hon'ble J.J. Munir,J.
1. This is a plaintiff's appeal arising from a suit seeking to declare a decree passed in an earlier suit inter partes void and for recovery of possession.
2. Original Suit No.378 of 1993 was instituted by Smt. Ramwati against Smt. Shakuntala and her two minor sons Harbansh and Harchand, represented by Smt. Shakuntala, their mother and guardian ad litem, before the Civil Judge of Bijnor (now Civil Judge (Sr. Div.)) on 11.05.1993 for declaration and possession in the terms set out hereinafter. Smt. Ramwati shall hereinafter be referred to as "the plaintiff", whereas Smt. Shakuntala and her two sons Harbansh and Harchand, who were arrayed as defendant nos.1, 2 and 3 to the suit and are respondent nos.1, 2 and 3 to this appeal, shall be collectively referred to as "the defendants". In the event of an individual reference, the defendant shall be called by his/her name.
3. It is the plaintiff's case that her father, the late Bhikki Singh was owner in possession of properties set out in Schedules A, B and C to the plaint. The plaintiff's father passed away on 13.01.1983. The plaintiff is Bhikki Singh's lone child and the sole heir entitled to inherit his estate. Bhikki Singh had married once in his lifetime and his wife was Smt. Khajano. Smt. Khajano passed away during the lifetime of Bhikki Singh. Smt. Shakuntala, defendant no.1 to the suit, never married Bhikki Singh. She was married to one Shyamlal, whom she deserted, and thereafter, stayed with a number of men. For a period of about 2-3 years past, she had been staying with the late Bhikki Singh. Smt. Shakuntala had brought along with her to Bhikki Singh's home, her sons Harbansh and Harchand. The plaintiff stays with her husband at Ghaziabad. Though not specifically said, it seems that Bhikki Singh would stay at Village Nawabpura, Pargana and Tehsil Najibabad, District Bijnor.
4. It is the plaintiff's case that after her father's death, she came over to her parental home and asked the defendants to vacate her father's house. The defendants refused. Thereupon, the plaintiff instituted Suit No.162 of 1985, Ramwati vs. Shakuntala and others, which appears to be a suit for possession after terminating the defendants' licence. The suit last mentioned was brought by the plaintiff against the defendants to establish her claim and recover possession of the property indicated in Schedule A, B and C to the plaint giving rise to the present suit. The defendants had got their names recorded over the agricultural land, part of the suit property.
5. The plaintiff was prosecuting Original Suit No.162 of 1985 through Mr. Gulzar Husain, Advocate. Pending the suit, Smt. Shakuntala proposed an amicable settlement in terms that Smt. Shakuntala would acknowledge the plaintiff's right to the property mentioned in Schedules A, B and C to the plaint giving rise to the present suit and file a compromise to the above effect. The plaintiff is an illiterate woman hailing from a rural background. Taking it to be a document, where the defendants had acknowledged her right to the suit property, she appended her mark of thumb to the terms of compromise proposed to be filed in Suit No.162 of 1985. Thereupon, Smt. Shankutala, defendant no.1 and her pairokar, one Harswaroop engaged a new Counsel on her behalf, who filed the aforesaid compromise, thumb marked by her, on 04.01.1992, practising fraud upon the plaintiff. The plaintiff learnt it by rumour on 04.01.1992 (which appears to be a mistaken mention for the date ''04.02.1992' on account of a clerical error in the plaint) about the decree secured fraudulently by the defendants in Suit No.162 of 1985. Thereupon, on 05.03.1992, the plaintiff applied for a copy of the decree. She was issued with a certified copy on 22.03.1992. After obtaining necessary legal assistance, the plaintiff instituted the present suit seeking to declare the decree void in Suit No.162 of 1985 on the ground that it was obtained by fraud and consequential relief of possession.
6. The defendants filed their written statement and contested the suit. It was their case that shortly after the plaintiff's birth, Smt. Khajano passed away. Thereupon, Smt. Shakuntala, defendant no.1 married Bhikki Singh and the two stayed together as man and wife. Harbansh and Harchand, defendant nos.2 and 3 were begotten of Bhikki Singh after marriage of parties. Bhikki Singh passed away 17-18 years antedating the date when the written statement was filed in the suit. Upon Bhikki Singh's death, the names of defendants, Harbansh and Harchand were recorded in the revenue records in place of Bhikki Singh.
7. The plaintiff appealed against the mutation order to the Court of the Sub-Divisional Magistrate. Upon losing in appeal, a revision was carried to the Commissioner, Moradabad Division, Moradabad by the plaintiff, which too was dismissed. A further revision to the Board of Revenue, Allahabad was rejected on 14.02.1990. According to the defendants, Harbansh and Harchand were acknowledged as Bhikki Singh's heirs. Their names have been duly mutated in the revenue records. So far as the house is concerned, it was got constructed by the defendants, and they are its owners. The plaintiff's case that Smt. Shakuntala, defendant no.1 was married to Shyamlal is incorrect. The plaintiff never stayed at Village Nawabpura nor did she visit the village at the time of Bhikki Singh's death. The plaintiff did not join Bhikki Singh's last rites. Bhikki Singh's last rites, including Trayodashi, was done by the defendants. The defendants are owners in possession of all properties left behind by Bhikki Singh. When the plaintiff sensed that she would lose Suit No.162 of 1985, she compromised the matter with the defendants, in terms whereof, a compromise was filed before the Munsif Nagina, District Bijnor, where the earlier suit was pending. Accordingly, the said suit was decided in terms of the compromise. There are some other legal pleas raised in the written statement, that are not of much relevance. It is, however, to be noticed that there are pleas in the written statement that the compromise in the earlier suit was entered into by the plaintiff after understanding its contents that were explained to her by her Counsel before she appended her thumb mark. The plaintiff's case that the compromise filed in Suit No.162 of 1985 is based on fraud, is incorrect. The decree passed in the earlier suit is valid and is not liable to be avoided. A plea was also raised that since the suit property was agricultural land, and in the defendant's possession, the Civil Court had no jurisdiction to try the suit.
8. On the basis of pleadings of parties, the Trial Court struck the following issues (translated into English from Hindi):
"(1) Whether on the facts pleaded, the judgment and decree dated 04.01.1992 passed in Suit No.162 of 1985 is liable to be cancelled?
(2) Whether the plaintiff's suit is barred by res judicata?
(3) Whether the suit is undervalued and the court fee paid is insufficient?
(4) Whether this Court has jurisdiction to try the suit?
(5) Whether the suit is barred by the principles of waiver and estoppel?
(6) To what relief is the plaintiff entitled?"
9. The plaintiff examined herself as PW-1, besides one Hriday Narain as PW-2 and another Bhode as PW-3. On behalf of the defendants, Mr. Jagdev Prasad, Advocate was examined as DW-1, Smt. Shakuntala as DW-2, one Sukkhi as DW-3 and another Chiranji Lal as DW-4. Both sides filed voluminous documentary evidence, including revenue records and family registers and the compromise recorded in Suit No.162 of 1985 (that was filed by the plaintiff). A detailed reference to the summary of documentary evidence led on behalf of both sides is not necessary, because that figures in copious detail in the judgments of the Trial Court and the Lower Appellate Court.
10. So much of the evidence, if at all, would be referred to as may be relevant for the purpose of determination of the substantial questions of law arising.
11. This appeal was entertained by an order dated 22.05.2008, and notice pending admission was issued. An interim order was granted, directing parties to maintain status quo on the said date. The lower court records were summoned at the plaintiff's expense, because the plaintiff appears to have urged that the lower court records would be essential for hearing under Order XLI Rule 11 CPC. After arrival of lower court records, the appeal was admitted to hearing vide order dated 08.08.2012, framing two substantial questions of law. These read:
1. Whether the compromise entered into Suit No.162 of 1985 was unlawful being against the provisions of Order XXIII rule 3 read with Order XXXII Rule 7 CPC?
2. Whether the courts below while holding that the plaintiff had failed to prove that the compromise entered into in Suit No.162 of 1985 was obtained by defendant-respondent by playing fraud upon her have disregarded material evidence on record?
12. The appeal came up for hearing on 29.09.2021 and before hearing could commence, this Court felt that a further substantial question of law was essential to formulate for an effective disposition of the appeal. Accordingly, on 29.09.2021, an added substantial question of law was formulated, marked as No. 3, that reads:
3. Where a compromise entered into in a suit by parties is denied by one of them on the ground of fraud or non est factum, is it exclusively the Court which passed the compromise decree that can set it aside and not another Court in a separate suit?
13. No one appeared on behalf of the defendants at the hearing of the appeal, though Mr. Arun Kumar Singh had been appearing earlier. It must be noticed here that Mr. Arun Kumar Singh, learned Counsel for Harbansh and Harchand, who are now adults, made an application seeking abatement of the appeal against defendant no.1, Smt. Shakuntala on ground that she passed away on 09.06.2018. The affidavit filed in support of the application says that defendant nos.2 and 3 are her heirs and LRs entitled to represent her estate, who are already on record. It is perhaps in this view of the matter that no orders were passed on this application, which is inconsequential. This appeal has, therefore, proceeded and heard ex parte.
14. Heard Mr. Mohd. Mohiuddin Siddiqui, learned Counsel for the plaintiff.
15. The learned Counsel for the plaintiff has addressed the Court extensively on all the three substantial questions of law. It has been argued by the learned Counsel for the plaintiff, Mr. Mohd. Mohiuddin Siddiqui, that the compromise entered into in Suit No.162 of 1985 being one on behalf of the two minors, could not be done without leave of Court, inasmuch as Rule 7 of Order XXXII mandates that no next friend or guardian representing a minor in a suit can enter into any agreement or compromise on the minor's behalf without leave of the Court. It is also mandated by Rule 1A of Order XXXII that an application seeking leave of the Court to enter into a compromise on behalf of a minor by his next friend or guardian, and also if the minor is represented by a pleader, shall be accompanied by a certificate of the pleader that the agreement or compromise is, in his opinion, for the minor's benefit. The Court is obliged to examine the question whether the compromise is actually for the minor's benefit. All this not being done, the compromise is vitiated.
16. It is also argued that there is much evidence on record that the plaintiff's thumb mark on the compromise were secured by playing fraud, taking advantage of her illiteracy and misrepresenting to her the contents of the document, telling her that it was a compromise in acknowledgement of her rights to the suit property. It has also been urged that apart from the plea of fraud, the plaintiff being an absolutely illiterate woman, who is a rustic, burden lay upon the defendants to affirmatively establish that she understood the contents of the compromise before appending her thumb mark to it.
17. It is argued that a plea of non est factum in the case of an illiterate and rustic woman, not acquainted with the ways of the world, casts burden on the other side to establish by affirmative evidence that a person under this kind of a disability, like a pardanashin woman, was explained and made to understand the nature and contents of the transaction, she was entering into. In this connection, the Court has perused the memorandum of compromise filed in Original Suit No.162 of 1985 before the Court of the Ist Additional Munsif, Court No.3, Nagina, District Bijnor. The memorandum of compromise acknowledges the rights of the defendants to the suit property after the plaintiff's marriage and the effacement of her own rights in her father's property after her marriage.
18. It has been acknowledged that Shakuntala is the plaintiff's mother, whereas Harbansh and Harchand, defendant nos.2 and 3 are her brothers. The plaintiff would have a right to visit her mother's home according to custom and she would be welcomed, but it is the defendants who would be and remain the owners of the suit property. On the basis of the said compromise, after identification of parties and verification by the Court, an order was made on 24.01.1992, accepting the compromise. A decree followed on its basis. Much could be said about the validity or invalidity of the aforesaid compromise recorded in Suit No.162 of 1985, but this Court, being a Court of second appeal, is confined in its jurisdiction to the substantial question of law arising. The first question to be addressed is Question No.3.
19. It is not in dispute that the compromise, that is sought to be annulled by the present suit, was passed in an earlier suit inter partes. The present suit is a separate suit brought to annul the compromise, recorded in Suit No.162 of 1985, with consequential relief. The law regarding the recording of compromise and the forum to set aside a compromise, that one of the parties denies and the other asserts, is governed by the provisions of Order XXIII Rules 3 and 3A, which are extracted below:
"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.
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."
20. It is now well settled that if a party to a compromise recorded in a suit, on the basis of which a decree is passed, denies existence of the adjustment or satisfaction made through the compromise, on which a decree has followed, which the other party affirms, the question has to be adjudicated by the Court which passed the decree by virtue of the proviso to Rule 3 of Order XXIII. A separate suit to set aside a compromise, recorded in an earlier suit inter partes, is clearly barred by Rule 3-A of Order XXIII CPC. The proviso to Rule 3 of Order XXIII and Rule 3-A of the said Order, absolutely and without qualification, excludes the possibility of a compromise recorded in a suit, lawfully or unlawfully from being assailed by a separate suit. The only forum is the same Court, which has passed the decree based on the compromise. In a very recent decision, the Supreme Court in M/s. Sree Surya Developers and Promoters vs. N. Sailesh Prasad and Others, 2022 SCC OnLine SC 165 had occasion to consider the question that precisely arises for consideration here. It would be of immense profit to refer to the holding of their Lordships in M/s. Sree Surya Developers and Promoters (supra), including the reference therein to certain earlier decisions. In M/s. Sree Surya Developers and Promoters, it was held:
"25. Now, so far as the main issue whether the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11 CPC on the ground that an independent suit challenging the Compromise Decree would be barred in view of Order XXIII Rule 3A CPC is concerned, on plain reading of Order XXIII Rule 3A CPC, the Trial Court was justified in rejecting the plaint. Order XXIII Rule 3A CPC, which has been inserted by amendment in 1976 reads 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."
26. Therefore, on plain reading of Order XXIII Rule 3A 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 the case of R. Janakiammal (supra). It is observed and held by this Court that Rule 3A of Order XXIII 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 3A 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 XXIII Rule 3 as well as Rule 3A. The earlier decisions of this Court have also been dealt with by this Court in paragraphs 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 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 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 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.
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 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."
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, (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, 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."
27. 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.
28. 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."
21. Substantial Question of Law No. 3 is answered in the affirmative in terms that in a compromise entered into in a suit by parties, that is denied by one of them on the ground of fraud or non est factum, it is the Court that passed the decree based on the compromise alone that can set it aside on an application made to it; a compromise decree cannot be set aside in a separate suit filed by the party in denial.
22. In view of the answer to Substantial Question of Law No.3, the other questions arising in this appeal need not be answered. Those questions or issues that give rise to those questions can be gone into, if the Court that passed the compromise decree in Original Suit No.162 of 1985, were moved to set aside the compromise. All findings, therefore, recorded by the Courts below on merits of the parties' case, are of no consequence. The Courts below had no jurisdiction to try or determine the suit on merits. The findings recorded by them are non est.
23. In the circumstances, therefore, this Court must remark as a matter of equity, justice and good conscience, as also the trite position of the law governing rights of parties, that it would be open to the plaintiff to suit her rights through the appropriate remedy available under the law, subject, of course, to the law of limitation to move the appropriate Court for relief as may be advised.
24. In consequence of the conclusions reached by us, this appeal fails and is dismissed.
25. However, in the circumstances, it is directed that the parties shall bear their own costs.
26. Let a decree be drawn up, accordingly.
27. Let the lower court records be sent down at once.
Order Date :- 28.3.2022 Anoop