Karnataka High Court
Sri Lokanath vs Sri M Muniyappa on 15 July, 2022
Bench: G.Narendar, Jyoti Mulimani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REVIEW PETITION NO.164/2022
IN
RFA NO.1439/2019
BETWEEN:
SRI LOKANATH
S/O LATE M KRISHNAPPA
@ MUNIKRISHNAPPA
AGED ABOUT 49 YEARS,
R/AT DOOR NO.166,
SULKUNTE COLONY,
DOMMASANDRA POST,
BANGALORE SOUTH TALUK.
... PETITIONER
(BY SRI RANJITH K.S, ADV.-ABSENT)
AND:
1. SRI M MUNIYAPPA,
S/O LATE MUNINANJAPPA,
AGED ABOUT 70 YEARS,
R/AT NO. 434/1, 18TH MAIN,
24TH CROSS, NEAR HSR CLUB,
HSR LAYOUT, 3RD SECTOR,
BANGALORE - 560 102.
2. SRI ESHWARAPPA,
S/O LATE MUNINANJAPPA,
AGED ABOUT 65 YEARS,
R/AT NO.50, YELLAPPA STREET,
CHIKKAMAVALLI, BANGALORE - 560 004.
2
3. SRI NARAYANAPPA,
S/O LATE MUNINANJAPPA,
AGED ABOUT 61 YEARS,
R/AT NO.4, CORPORATION MARKET,
R.V.ROAD, BANGALORE - 560 004
4. SRI THEERTHAGIRI
S/O LATE MUNINANJAPPA,
AGED ABOUT 59 YEARS,
R/AT NO.4, CORPORATION MARKET,
R.V.ROAD, BANGALORE - 560 004.
5. SRI M SRINIVAS
S/O LATE MUNINANJAPPA,
AGED ABOUT 55 YEARS,
R/AT NO.5, CORPORATION MARKET,
R.V.ROAD, BANGALORE - 560 004.
6. SRI M SRIDHAR
S/O LATE MUNINANJAPPA,
AGED ABOUT 53 YEARS,
7. SMT. NAGARATHNA
W/O M SRIDHAR,
AGED ABOUT 50 YEARS,
R-6 AND R-7 ARE
R/AT NO.3626, SKANDAGRAJA,
SRI LAKSHMIVENKATESHWARA PRASANNA,
25TH CROSS, 6TH BLOCK,
JAYANAGAR, BANGALORE-560082.
8. SMT. KRISHNAVENI @ LEELA GANDHI,
W/O LATE B S GANDHI,
AGED ABOUT 53 YEARS,
NO.39, 30TH MAIN, 2ND CROSS, 1ST PHASE,
2ND STAGE, BTM LAYOUT, BANGALORE.
... RESPONDENTS
THIS REVIEW PETITION FILED UNDER ORDER 47 RULE 1 OF
CPC, PRAYING TO REVIEW THE ORDER DATED 30/01/2020 PASSED IN
REGULAR FIRST APPEAL NO. 1439/2019 ON THE FILE OF THIS
HON'BLE COURT AND GRANT SUCH OTHER AND FURTHER RELIEFS AS
THIS HON'BLE COURT DEEMS FIT AND PROPER UNDER THE
CIRCUMSTANCES OF THIS CASE.
3
THIS REVIEW PETITION COMING ON FOR "ORDERS" THIS DAY,
G.NARENDAR J, MADE THE FOLLOWING:
ORDER
Case is called. There is no representation on behalf of the petitioners. Neither the petitioner nor the counsel are present.
2. Having perused the petition and in view of the settled position in law, we deem it appropriate to take up the matter for consideration for disposal.
3. The narration in the review petition and elicited in paragraphs 5, 8 and 9 which reads as below:
"5. It is submitted that Respondent No 1 to 4 had instituted a suit for partition in O.S.No 2221/2014 on the file of VII Additional City Civil and Sessions Judge, Bengaluru and during the pendency of suit respondents entered into a compromise keeping this petitioner aside and a compromise decree was passed by its judgement and decree dated 12.04.2019. Challenging the same appellant had preferred appeal before this Hon'ble court and during the pendency of the aforesaid appeal this petitioner had filed a memo for withdrawal stating that the matter was settled out 4 of court but the respondents defrauded this petitioner that they would grant the appropriate share which he legally entitled and made this Petitioner to file a memo for withdrawal which the respondents miserably failed to do so.
8. It is submitted that, petitioner has approached this Hon'ble court on the only ground of equity. Respondents had promised that petitioner would be getting his genuine legal share which he is entitled for but he was defrauded by his family members after this court passed orders on the basis of memo for withdrawal.
9. It is submitted that it would be just and necessary to meets the ends of the justice that this Hon'ble court should come into the rescue of the petitioner so as to petitioner should not be prejudiced from his legally entitled rights on the false promises."
4. From a reading of the above it is apparent that the petitioner has preferred the appeal against a compromise decree and is questioning the correctness and legality of the compromise decree. The latest in the line of rulings rendered by the Apex Court in respect of fresh suits 5 preferred against the compromise decree is the one rendered in the case of Sree Surya Developers and Promoters vs. N Sailesh Prasad and others reported in (2022) 5 SCC 736 wherein the Hon'ble Apex Court has categorically held that remedy for a party lies in an application to the very same Court which passed the compromise decree. A useful reference of some of the observations of the Apex Court in the aforesaid ruling could be made to, more particularly in paragraphs 8 and 9 which clinches the issue. Paragraphs 8 and 9 reads 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 [R. Janakiammal v. S.K. Kumarasamy, (2021) 9 SCC 114] . 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 6 bar under Rule 3-A 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 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
: (R. Janakiammal case [R. Janakiammal v. S.K. Kumarasamy, (2021) 9 SCC 114] , SCC pp. 132-36) "53. Order 23 Rule 3 as well as Rule 3-A came for consideration before this Court in large number of cases and we need to refer to a few of them to find out the ratio of judgments of this Court in context of Rule 3 and Rule 3-A. In Banwari Lal v. Chando Devi [Banwari Lal v.
Chando Devi, (1993) 1 SCC 581] , this Court considered Rule 3 as well as Rule 3-A of the Order
23. This Court held that the object of the Amendment Act, 1976 is to compel the party challenging the compromise to question the court which has recorded the compromise. In paras 6 and 7, the following was laid down : (SCC pp. 584-85) '6. The experience of the courts has been that on many occasions parties having filed 7 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 8 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."9
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 [Pushpa Devi 10 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 11 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 12 pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code.'
55. The next judgment is R. Rajanna v. S.R. Venkataswamy [R. Rajanna v. S.R. Venkataswamy, (2014) 15 SCC 471 : (2015) 4 SCC (Civ) 238] in which the provisions of Order 23 Rule 3 and Rule 3-A were again considered. After extracting the aforesaid provisions, the following was held by this Court in para 11 : (SCC p. 474) '11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any 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 13 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.
14That 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 15 and that court alone which can examine and determine that question.
57. In subsequent judgment, Triloki Nath Singh v. Anirudh Singh [Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC 629 : (2020) 3 SCC (Civ) 732] , this Court again referring to earlier judgments reiterated the same proposition i.e. the only remedy available to a party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and separate suit is not maintainable. In paras 17 and 18, the following has been laid down : (SCC p. 638) '17. By introducing the amendment to the Civil Procedure Code (Amendment) Act, 1976 w.e.f. 1-2-1977, the legislature has brought into force Order 23 Rule 3-A, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all.
1618. Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3-A of the Order 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.' "
That thereafter it is specifically observed and held that a party to a consent decree based on a compromise and if they desire to challenge the compromise decree on the ground that the decree was not lawful i.e. it was void or voidable then 17 they have to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable."
5. The remedy sought for by the review petitioner/appellant lies before the very Court which passed the compromise decree. Hence liberty is reserved to the petitioner.
6. In that view of the matter, the review petition does not survive for consideration and stands rejected.
Sd/-
JUDGE Sd/-
JUDGE ykl CT-HR