Gujarat High Court
Gunvantbhai Thakorbhai Desai vs Bhikhubhai Chhaganbhai Desai on 22 July, 2024
NEUTRAL CITATION
C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15105 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUNVANTBHAI THAKORBHAI DESAI & ORS.
Versus
BHIKHUBHAI CHHAGANBHAI DESAI & ORS.
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Appearance:
MR BS PATEL, SR. COUNSEL WITH MR CHIRAG B PATEL(3679) for the
Petitioner(s) No. 1,2,3,4,5,6
for the Respondent(s) No.
1,10,11,12,13,14,14.1,14.2,2,3,4,5,5.1,5.2,5.3,6,7,7.1,7.2,7.3,7.4,8,8.1,8.2,9,9
.3
MR HRIDAY BUCH(2372) for the Respondent(s) No. 9.1,9.2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 22/07/2024
CAV JUDGMENT
1. Rule. Learned advocate Mr.Buch waives service of rule on Page 1 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined behalf of respondent no.9.1 and 9.2.
2. By way of this petition, the petitioner has prayed for following reliefs :-
"(A) Your Lordship may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside impugned order dated 25th April, 2023 passed by learned 10th Additional Senior Civil Judge, Surat in Civil Miscellaneous Application No.173 of 2022 at Exh.68 at Annexure-A to the petition and direct that the Civil Miscellaneous Application SC No.173 of 2022 to be allowed;
(B) Pending admission and final disposal of this petition, Your Lordships may be pleased to stay the further execution, implementation and operation the order dated further and 25th 9th of August, 2011 passed by learned Additional Senior Civil Judge, Surat in Special Civil Suit No 412 of 4011 and Execution Petition No. 23 of 2014 Annex -"B" and "L" " pending in the Court Ld. Senior Civil Judge at Surat;
(C) Cost of this petition may kindly be awarded;
(D) Such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted."
3. Facts of the case are as under :-
3.1. The petitioners are residing in different countries, but abroad. The brother of respondent No.1 is cousin brother of petitioners. There are different agricultural lands belonging to the petitioners and Respondent No. 14 of their joint family which were to be looked after by respondent No.1. The respondent No.1 Page 2 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined had induced all the petitioners and Respondent No. 14 by contending that in India, there are number of litigation and for that, he is in need of power of attorney. All the petitioners and Respondent No. 14 had executed power of attorney in favour of respondent No.1 which has been misused by respondent No.1.
The petitioners state that respondent Nos.11 to 14 could not have been arraigned as petitioners in the present petition as they have not case given consent and in the present case the petitioners are not claiming any relief against respondent nos.11 to 14.
3.2 Respondent No.10 who is distant relative of the petitioners has filed Special Civil Suit No.412 of 2011 in the court of learned Senior Civil Judge, Surat. The case has been filed on 11th August, 2011. Along with suit, respondent no.10 filed list of documents. It is pertinent to be considered that the documents clearly provide that there is new tenure land, tenure of which is restricted under section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948. The provisions of the Tenancy Act clearly provide that there cannot be any agreement to sell in favour of any party without previous permission of Collector. Even, no court can pass decree as new tenure land is also protected and the same be transacted only with previous permission of the Collector. Learned Trial Judge was quite aware regarding the provisions of the Tenancy Act, but have been totally ignored at the time of accepting compromise which has deprived the petitioners from their valuable right attached to the immovable property.
Page 3 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined 3.3 The petitioners state that that the notice was made returnable on 17th August, 2011, while the process fees has been paid by the respondent No.10 on 16th August, 2011 and the notice has been issued on 16th August, 2011. Surprisingly, on going through the record, it appears that the bailiff made the report that he has tried to serve the summons on 16th August, 2011, the day on which the process has been paid and on behalf of original defendant Nos.2 to 15, respondent No.1 has taken the summon and without any proof, the bailiff has served the summon on respondent No.1.
3.4 The petitioners states that on 17th August, 2011, almost all the defendants appeared before learned Court below and submitted the application for submitting the written statement. Learned Court below allowed the application and passed the order to that effect that the application is allowed for the day only. But, looking to the rojkam, the matter has been kept on 03rd September, 2011. On 25 th August, 2011, all the defendants appeared and submitted the application Exh.12 before learned Court below for taking the matter. Application Exh.13 was moved in which permission was sought for permission under Order 23 Rule 3(b) of the Code and same has been granted by learned Court below without any verification on the same day.
3.5 The petitioner state that on 25 th August, 2011, all the power of attorney had been produced by respondent no.1 by list at Exh.14 and Exh.15, compromise has been submitted and according to compromise learned Trial Court passed consent Page 4 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined judgment and decree. The petitioner submits that no satisfaction is recorded by learned Court below and even considering rojkam itself, no party was present when compromise has been produced and accepted by learned Court below. The valuable property of the petitioners has been disposed of at throw away price. None of the petitioners were aware but suddenly respondent no.9 filed Execution proceedings No.23 of 2014 in Court of learned Senior Civil Judge, Surat and petitioners appeared through advocate. It appears that respondent no.10 in collusion with respondent no.1 cousin brother of the petitioner and power of attorney of the petitioners have committed fraud with property of the petitioners.
3.6. The petitioners have cancelled power of attorney in favour of respondent no.1 through their advocate and notices are issued.
3.7. The petitioners approached the Hon'ble Court by filing Special Civil Application No.6091 of 2015. After hearing the petitioners, Hon'ble Court issued notice and granted stay against execution.
3.8. After hearing both the sides, the Hon'ble Court was of the opinion that in view of Full Bench Judgment in case of Sakina Sultanali Sunesara (Momin) & Ors. Vs. Shia Imami Ismaili Momin Jamat Samaj & Ors. reported in 2020 (1) GLR 586, the petitioners are required to approach the civil court by filing an application under Order XXIII Rule 3A of the Code. Hence, the petitioners withdrew the petition. The Hon'ble Court was pleased to extend the stay for a period of two weeks.
Page 5 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined 3.9. The petitioners approached learned Senior Civil Judge, Surat by filing Civil Miscellaneous Application No.173 of 2022 in Special Civil Suit No.412 of 2011. It was incumbent for the civil court to decide legality and validity of the compromise dated 25th August, 2011 and the order passed thereon, except that nothing was required to be decided. The matter was heard at length. At the time of hearing, learned advocate appearing for the petitioners submitted written submissions so that it can be convenient to the court in deciding the matter. Said application is dismissed. Hence, present petition.
4. Heard learned Senior Counsel Mr.B.S.Patel with learned advocate Mr.Chirag Patel for the petitioner and learned counsel Mr.Hriday Buch for respondent no.9.1 and 9.2. Rest of the respondents though served, did not remain present to contest the petition.
5. Learned senior counsel Mr.B.S.Patel for the petitioner after referring to Constitution Bench judgment in the case of Naresh Shridhar Mirajkar v/s. State of Maharashtra [AIR 1967 SC 1] fairly accepted that Writ of Certiorari is not available to the present petitioners but would submit that the present petition may be treated as petition under Article 227 of the Constitution of India seeking relief of issuance of appropriate Writ as no other alternative and efficacious remedy is available to challenge impugned order.
5.1. Learned Senior Counsel Mr.Patel would submit that Page 6 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined essentially, the petitioner is challenging lawfulness of agreement, being a compromise decree recorded by the learned Trial Court. He would further submit that the petitioner has preferred application under Order 23 Rule 3A of the CPC to recall compromise decree on the ground of lawfulness of the agreement which is forming part of compromise decree but said application has been rejected by the learned Trial Court. It is submitted that since said order is not decree, it cannot be challenged by way of appeal under section 96 of CPC. It is further submitted that prior to amendment in CPC, remedy was available under Order 43 Rule 1(M) of CPC to challenge said order, but in the year 1977 when amendment took place in CPC, provision of Order 43 Rule 1(M) of CPC has been taken away and as such now, even Appeal from Order is not available to challenge impugned order. He would further submit that under section 96(3) of CPC, there is bar to challenge consent decree. It is further submitted that even by submitting application under Order 23 Rule 3(A) of CPC before the Court recording compromise decree and obtaining order thereon would not lift bar under section 96(3) of CPC. It is further submitted that since order passed by learned Trial Court in application under Order 23 Rule 3(A) of CPC is judicial order, it is amenable to challenge in supervisory jurisdiction under Article 227 of the Constitution of India.
5.2. Learned senior Counsel Mr.B.S.Patel would submit that ratio of Full Bench Judgment in the case of Sakina Sultani Sunesara (Momin) v/s. Shai Imami Ismaili Momin Jamat Samah [2020 (1) GLR 586] has been misread by learned advocate for the respondent while raising preliminary objection on Page 7 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined maintainability of this petition. It is submitted that in the present case compromise deed executed on agreement and signed thereon are not in dispute as power of attorney on behalf of the petitioner has signed, but challenge is made to lawfulness and legality of the agreement being compromise and thus even as per settled law of Hon'ble Full Bench in the case of Sakina Sultani Sunesara (Momin) (supra) bar under section 96(3) of CPC operates to challenge such consent decree and as such first appeal is not maintainable. Learned Senior Counsel has also placed reliance on the judgment of Hon'ble Apex Court in the case of Kishun Alias Ram Kishun v/s. Behari (Dead) by Lrs [(2005) 6 SCC 300]. Relevant para relied by learned senior counsel Mr.Patel is para 7 which reads as under :-
"7. That apart, we are of the view that the High Court was in error in holding that the appeal filed by Kishun against the decree of the trial court accepting a compromise which was disputed by him, was not maintainable. When on a dispute in that behalf being raised, an enquiry is made (now it has to be done in view of the proviso to Order XXIII Rule 3 of the Code added by Act 104 of 1976) and the suit is decreed on the basis of a compromise based on that enquiry, it could not be held to be a decree passed on consent within the meaning of Section 96(3) of the Code. Section 96(3) contemplates non-appellability of a decree passed by the court with the consent of parties. Obviously, when one of the parties sets up a compromise and the other disputes it and the court is forced to adjudicate on whether there was a compromise or not and to pass a decree, it could not be understood as a decree passed by the court with the consent of parties. As we have noticed earlier, no appeal is provided after 1.2.1977, against an order rejecting or accepting a compromise after an enquiry under the proviso to Order XXIII Rule 3, either by Section 104 or by Order XLIII Rule 1 of the Code. Only when the acceptance of the compromise receives the Page 8 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined imprimatur of the court and it becomes a decree, or the court proceeds to pass a decree on merits rejecting the compromise set up, it becomes appealable, unless of course, the appeal is barred by Section 96(3) of the Code. We have already indicated that when there is a contest on the question whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96(3) of the Code could not have application. An appeal and a second appeal with its limitations would be available to the party feeling aggrieved by the decree based on such a disputed compromise or on a rejection of the compromise set up."
5.3. Referring to Order 23 Rule 3 of CPC, learned Senior counsel would submit that provision is divided in two parts, existence of lawful agreement and compromise decree in first part and in second part, one party alleging compromise while other denies and Hon'ble Court decides. It is further submitted that if later part of Order 23 Rule 3 is existing, it is amenable to appeal jurisdiction under section 96 of CPC but for decision on first part no efficacious remedy is provided under law and therefore, challenge to such order is available only under Article 227 of the Constitution of India.
5.4. Elaborating above submission, learned Senior Counsel Mr.Patel submits that when compromise / settlement deed is produced by one party and another party denies the same, decision there on arrived by the Court, can be challenged way of first appeal under section 96 of CPC, as once, other party denies compromise settlement, the decision arrived at is decision / decree on merits and not the consent decree. But in former part Page 9 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined of Order 23 Rule 3, where consent decree is questioned on ground of lawfulness, decision arrived therein would not change the nature of decree as far as consent decree to decree on contest. In this situation, bar under section 96(3) of CPC attracts and as such remedy of appeal is not available to petitioners.
5.5. On merit part, learned senior counsel Mr.Patel would submit that admittedly land in dispute is new tenure land. It is further submitted that there is no cavil that compromise deed between the parties remains agreement inter-se between them but with the seal of the Court when compromise decree is drawn. It is further submitted that in the present case, compromise decree being agreement between the parties is in regard to new tenure land whereby, agreement is made to sell new tenure land to contesting respondents.
5.6. It is further submitted that in view of bar created under section 43(3) of the Gujarat Tenancy and Agriculture Lands Act, 1948 (for short "the Act, 1948"), new tenure land cannot be sold without prior permission of the Collector. Reliance has been placed on judgment of this Court in the case of Decd Shaikh Isamailbhai Hushainbhai v/s. Vankar Ambalal Dhanabhai [2024 (1) GLH 222].
5.7. It is also sought to be submitted by learned senior counsel that since issue of lawfulness of agreement was before the learned Trial Court, the Court was required to examine issue from eyes of bar operating under section 43(3) of the Act, 1948 that new tenure land cannot be sold without prior permission of Page 10 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined the Collector. It is submitted that issue was raised before the learned Trial Court but learned Trial Court failed to determine this issue by misreading judgment in the case of Rameshbhai Chaturbhai Prajapati v/s. Minaxiben wd/o Rasiklal Tilakram [2011 (2) GLH 760].
5.8. Taking this Court through compromise / settlement purshish produced before the learned Trial Court in suit, more particularly, last six lines of condition no.(1), it is submitted that contesting respondent was knowing fully well that disputed land is new tenure land and it cannot be sold without prior permission of the Collector. Yet settlement has been recorded to nullify the provision of the section 43(3) of the Act, 1948, as by such compromise, it is permitted to pay premium and to convert new tenure land into NA land. The Court has no authority to direct the parties to execute sale deed or any instrument of new tenure land as agreement itself is void, in view of section 43(3) of the Act, 1948. It is further submitted that Court below has committed serious error in not accepting such contention.
5.9. Upon above submissions, learned senior counsel Mr.Patel would submit that present petition under Article 227 of the Constitution of India is maintainable and secondly to quash and set aside impugned order and consequently, also compromise decree arrived in suit.
6. Per contra, learned advocate Mr.Buch for respondent would submit that even Special Civil Application under Article 227 of the Constitution of India is not maintainable inter-alia on Page 11 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined the reason that petitioner has challenged compromise decree passed in the suit by way of Special Civil Application No.6091 of 2015 before this Court. It is submitted that this Court (Coram :
Umesh Trivedi, J.) after referring to judgment in the case of Sakina Sultanali Sunesara (Momin) (supra) disposed of the petition permitting the petitioner to prefer application under Order 23 Rule 3A of CPC before the Court who has passed decree.
6.1 It is submitted that thereafter present petitioner has filed CMA No.173 of 2022 before the learned Trial Court, Surat for recalling compromise decree on the ground that Court could not record compromise as terms of compromise is not lawful.
Learned advocate Mr.Buch submits that by way of filing CMA before the Court who has recorded compromise decree, the petitioner has come out from zone of party supporting compromise decree. It is further submitted that on decision in CMA, decree looses its character as compromise decree as it becomes decree after contest and as such now it is amenable to appeal jurisdiction under section 96 of CPC. It is submitted that since decree is now disputed by one of the signatory and claiming it to be unlawful decree, it changes its nomenclature to decree passed after noting party on variance and therefore, bar created under section 96(3) of CPC would not be attracted. Learned advocate Mr.Buch referred to judgment in the case of Sakina Sakina Sultanali Sunesara (Momin) (supra), more particularly para 26 and 40 of the judgment. It is submitted that since Full Bench of this Court has explained provision of law, in view of that, now First Appeal is maintainable to challenge order Page 12 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined of CMA which is merged in order of impugned decree. Therefore, he submits that present Special Civil Application is not maintainable.
6.2. On merits of the matter, learned advocate Mr.Buch would submit that learned Senior counsel Mr.Patel without reading real nature of plaint, tried to take help of recent judgment of Full Bench of this Court in the case of Deceased Shaikh Isamailbhai Hushainbhai (supra). He submits that suit in which compromise decree was recorded was filed for the purpose of partition and separate possession. Plaintiff therein has prayed for partition of disputed property and to separate her share and to give possession thereof. He would further submit that in this circumstances, reading of judgment in case of Decd Shaikh Isamailbhai Hushainbhai (supra) would not be helpful. He would submit that even otherwise terms and conditions upon which suit is compromised does not breach section 43 of the Act, 1948. There is no agreement to sale executed between the parties qua new tenure land. What is decided in terms and conditions of compromise is that sale is to be executed after following procedure laid down in various provisions of law. Thus, it is not exactly agreement to sale said to have been executed between the parties but it is solemn admission made by the plaintiff in favour of the defendants. It is submitted that in total 6 parcel of land were subject matter of suit, consequent to compromise decree, two parcel of land are sold in favour of the petitioner after obtaining premium and Collector has given permission to sale the property.
Page 13 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined 6.3. Another aspect which is argued by learned advocate Mr.Buch is that Special Civil Suit No.326 of 2015 is also filed and pending in the Court of Civil Court, where subject matter is same parcel of land and prayer made therein is to declare compromise decree arrived in Special Civil Suit No.412 of 2011 to be illegal and not binding to the plaintiff. It is further submitted that real intention of the plaintiff could be gathered from cross examination which took place in that matter whereby, he has stated that he wants to take more money.
6.4. In nutshell, learned advocate Mr.Buch submits that present petition be either disposed of as not maintainable or dismissed as no merits exists.
7. Regard had been to rival submissions of both the sides, let firstly examine preliminary objection raised by respondent on maintainability of writ petition in context to whether efficacious remedy is available under section 96 to challenge impugned order and decree.
8. Some of the facts necessary to decide the issue are as under :
8.1. Plaintiff - Bhanuben daughter of Nanubhai Gulabhai filed Special Civil Suit No.412 of 2011 before Civil Court, Surat against as many as 20 defendants with following reliefs :-
"(1) Kindly declare that the defendants no.1 to 19, neither themselves nor through their persons, servants, agents etc. Page 14 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined are entitled to sell, mortgage, gift, lease or transfer in any manner to the defendant no.20 without written permission of the plaintiff, or to deal it orally or in writing, or to borrow money thereon or to change the identity or entity or to act in a manner creating adverse effect to the rights of the plaintiff in the agricultural lands of District: Surat, Sub-
District: Surat, Taluka: Surat City, Moje: Dindoli, Block No.139, admeasuring Hector-5, Are-43, Sq. Mts.-29 and waste land admeasuring Hector-0, Are-95, Sq. Mts.-10, aggregating to Hector-6, Are-38, Sq. Mts.-39, Assessment Rs.74.86 Ps. AND of Moje: Dindoli, Block No.267, admeasuring Hector-1, Are-42, Sq. Mts.-65, Assessment Rs.20.94 Ps. AND of Moje: Dindoli, Block No.113, admeasuring Hector-1, Are-70, Sq. Mts.-98, Assessment Rs.26.31 Ps. AND of Moje: Dindoli, Block No.99, admeasuring Hector-0, Are-04, Sq. Mts.-05, Assessment Rs.1.31 Ps. AND of Moje: Dindoli, Block No.145, admeasuring Hector-2, Are-15, Sq. Mts.-14 and waste land admeasuring Hector-0, Are-15, Sq. Mts.-18, aggregating to Hector-2, Are-30, Sq. Mts.-32, Assessment Rs.32.43 Ps. AND of Moje: Dindoli, Block No.34, admeasuring Hector-1, Are-74, Sq. Mts.-02, Assessment Rs.25.62 Ps.
(2) Kindly get divided 1/4th undivided share or as may be decided by the Learned Court in the agricultural lands of District: Surat, Sub-District: Surat, Taluka: Surat City, Moje: Dindoli, Block No.139, admeasuring Hector-5, Are- 43, Sq. Mts.-29 and waste land admeasuring Hector-0, Are-95, Sq. Mts.-10, aggregating to Hector-6, Are-38, Sq. Mts.-39, Assessment Rs.74.86 Ps. and of Moje: Dindoli, Block No.267, admeasuring Hector-1, Are-42, Sq. Mts.-65, Assessment Rs.20.94 Ps. AND of Moje: Dindoli, Block No.113, admeasuring Hector-1, Are-70, Sq. Mts.-98, Assessment Rs.26.31 Ps. AND of Moje: Dindoli, Block No.99, admeasuring Hector-0, Are-04, Sq. Mts.-05, Assessment Rs.1.31 Ps. AND of Moje: Dindoli, Block No.145, admeasuring Hector-2, Are-15, Sq. Mts.-14 and waste land admeasuring Hector-0, Are-15, Sq. Mts.-18, aggregating to Hector-2, Are-30, Sq. Mts.-32, Assessment Rs.32.43 Ps. AND of Moje: Dindoli, Block No.34, admeasuring Hector-1, Are-74, Sq. Mts.-02, assessment Rs.25.62 Ps. and hand over exclusive possession thereof to the plaintiff.
Page 15 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined
9. Thus, it was suit for partition and separate possession of share. Compromise (Annexure -K) arrived at between the parties on 25.08.2021. Compromise is signed by plaintiff - Bhanuben and Bhikubhai Chaganbhai Desai in his personal capacity as well as Karta of HUF as well as power of attorney of defendant nos.5 to 15. Other signatories were Veenaben Desai, Dharmeshbhai Desai, Mitehbhai Desai, Narendra Nayak, Amrutbhai Nayak, Thakorebhai Nayak, Ishwarbhai Vashi and Vimlaben Desai. This compromise is signed by advocates of respective parties. This compromise was in regard to 6 parcel of land. Terms and conditions of the compromise has been given assent by the Court below and passed compromise decree. One - Hashmukhbhai Thakorbhai Desai and others challenged said compromise decree by filing Special Civil Application No.6091 of 2015 before this Court (Annexure-P). Co-ordinate Bench of this Court after referring to judgment in the case of Sakina Sultanali Sunesara (Momin) (surpa) permitted the petitioner to prefer application before the Court who has passed decree as in case of a decree passed by the Court on the basis of compromise between the parties, remedy available to the aggrieved party who was party to the suit would be to file an application under proviso to Rule 3 of Order 23 of CPC. Pursuant to which, the petitioner has filed CMA No.173 of 2022 before the learned Trial Court under Order 23 Rule 3 of CPC. Said application is rejected, therefore, petitioner has approached this Court.
10. Preliminary objection is that petition under Article 227 of Page 16 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined the Constitution of India is not maintainable as decree initially which was consent decree having been objected losses character of consent decree and becomes decree on contest and as such amenable to appellate jurisdiction under section 96 of CPC.
11. In background of above facts, let refer Order 23 Rule 3 and Rule 3A of CPC.
"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].
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."
Order 23 Rule 3A of CPC bars filing of the suit to such decree on the ground that compromise of which decree is based was not lawful.
Page 17 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined Proviso to Rule 3 of Order 23 of CPC indicates that when one party alleges and other party denies that an adjustment or satisfaction has been arrived at, the Court shall decide the question.
12. In the present case, by filing CMA No.173 of 2022, the petitioner alleges that learned Court has not examined lawfulness of compromise / settlement deed and as such compromise is illegal and cannot be converted in compromise decree. Other party supports the compromise decree including it's lawfulness. However, decision of the Court comes against the petitioner. What could be seen that decision is arrived on contest to the consent decree. Once contest is made to the consent decree, consent decree would loss its nature of being consent decree. It is now decree after contest. Phrase 'adjustment or satisfaction' appearing in Rule 3 of Order 23 of CPC permits party to allege that agreement which arrived at is not lawful and therefore, adjustment and satisfaction is not lawful. What could be seen that on decision in application filed under proviso eventually made consent decree to a decree passed after contest.
13. This situation has been addressed by the Full Bench of this Court in para 26 and 40 of judgment in the case of Sakina Sultani Sunesara (Momin) (supra). Para 26 and 40 reads as under :-
"26. Now, there could be a situation where the parties to the suit arrive at a compromise, sign such compromise and request the Court to pass a decree, and the Court passes the decree, however, subsequently one of the parties Page 18 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined realises his mistake or comes to know that some fraud was committed while arriving at the compromise with the other party. In such a situation, the aggrieved party, who was party to the compromise, can not file either the Appeal under Section 96(1) against such decree, the same being the consent decree, on account of the bar contained in Section 96(3), or a separate suit, on account of the bar contained in Rule 3A of Order XXIII. The only option open to such party, therefore, would be to approach the same Court which had passed the decree. As held by Supreme Court in case of R. Rajanna (supra), no sooner a question relating to the lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of the compromise, it is that Court and that Court alone who can examine and determine that question. In Pushpadevi's case also the Court has categorically summarized the legal position and held that the only remedy available to the party to the 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 lawful compromise or agreement. 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. When the said question is decided by the Court which had passed the decree, the aggrieved party could file an appeal under Section 96(1), and the bar under Section 96(3) would not be attracted, as when the factum of compromise is disputed by either of the party, and such question is decided by the Court, it no longer remains a "consent decree" between the parties. In such an appeal filed against the decree passed in a suit after recording a compromise or refusing to record a compromise, the appellant can contest the decree on the ground that the compromise should, or should not have been recorded in view of Rule 1A(2) of Order XLIII of CPC.
40. The upshot of the above may be summed up as under:-
(i) After the deletion of Clause (m) of Rule 1 of Order XLIII, by the amendment Act 104 of 1976, no Appeal from Order against the order passed under Rule 3 of Order XXIII recording or refusing to record an agreement, compromise Page 19 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined or satisfaction would lie under Rule 1 of Order XLIII of CPC. Rule 1A of Order XLIII does not provide for any remedy to file an appeal either against any order or against any decree.
(ii) It is only in an appeal filed under Section 96(1) read with Order XLI of CPC, against the decree passed in the suit after recording of compromise or refusing to record compromise, the appellant can contest such decree on the ground that the compromise should or should not have been recorded, in view of Rule 1A(2) of Order XLIII.
(iii) No appeal would be maintainable from a decree passed by the Court with the consent of the parties i.e. on the basis of the compromise arrived at between the parties in the suit under Rule 3 of Order XXIII, in view of the bar contained in Section 96(3) of CPC.
(iv) No suit shall lie to set aside a decree passed under Rule 3 of Order XXIII on the ground that the compromise on which the decree is based was not lawful in view of the bar contained in Rule 3A of Order XXIII.
(v) If the aggrieved party was the party to the suit, the only remedy available to him against the decree passed by the Court on the basis of compromise between the parties (consent decree), would be to file an application under the proviso to Rule 3 of Order XXIII, disputing such compromise. The Court which passed the compromise decree has to decide the said dispute or question raised by the party.
(vi) When there is a dispute raised by either of the parties to the suit on the question as to whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96(3) of the Code would not have any application. Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.
(vii) If the aggrieved party was not the party to the suit, the remedy available to him to challenge the decree passed by Page 20 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined the Court on the basis of compromise between the parties to the suit (consent decree), would be to file an appeal under Section 96(1) of CPC, with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of CPC.
(viii) The words "signed by the parties" contained in Rule 3 of Order XXIII would include the compromise signed by the duly authorized pleaders or the power-of-attorney holders or the recognized agents of the parties concerned."
14. Para 40(vi) is sufficient to cover up the issue raised before this Court. In the present case, petitioner preferred CMA before learned Trial Court alleging unlawfulness in the terms and conditions of compromise and further claims that adjustment or satisfaction arrived at by Court in compromise decree is unlawful, but learned Trial Court dismissed the CMA and accepted compromise arrived at between the parties. In that circumstances, decree which at first instance was consent decree arrived on terms of compromise of party, becomes decree on contest and in that event bar created under section 96(3) of CPC would not be attracted, in view of that petitioner has disputed adjustment of compromise.
15. The fulcrum of above discussion is that the petitioner has efficacious alternative remedy of filing appeal challenging judgment and decree under section 96 of CPC. Thus preliminary objection of maintainability of the petition sustains and accordingly, the petition stands dismissed on the ground of maintainability. However, liberty is granted to the petitioner to avail appropriate remedy available under law. It goes without Page 21 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024 NEUTRAL CITATION C/SCA/15105/2023 CAV JUDGMENT DATED: 22/07/2024 undefined saying that the Court has not touched merits of the dispute between the parties and it would be open for the concerned Court to decide the same on its own merits, if proceedings are filed.
16. Rule is discharged. Interim relief granted earlier, if any, stands vacated.
(J. C. DOSHI,J) SATISH Page 22 of 22 Downloaded on : Tue Jul 23 20:57:03 IST 2024