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7. The second defendant did not, however, pursue her application dated 21.8.2001 for setting aside the consent decree. On 27.8.2001, within six days of filing the application dated 21.8.2001 before the trial court for setting aside the decree, the second defendant filed an appeal against the said consent decree before the District Judge, Delhi. The appellate court by judgment dated 21.12.2002 set aside the consent decree on the ground that there was no agreement or compromise reduced to writing and signed by the parties. The matter was remanded to the trial court with a direction to proceed with the trial of the suit in accordance with the law by ignoring the statement of the counsel made on 23.5.2001.

(i) Whether the appeal filed by Pushpa Devi under section 96 of the Code of Civil Procedure, against the consent decree was maintainable.
(ii) Whether the compromise on 23.5.2001 resulting in a consent decree dated 18.7.2001 was not a valid compromise under Order 23 Rule 3 CPC.

Re : Point No. (i)

10. It is no doubt true that the landlords did not contend either before the first appellate court or before the High Court that the appeal against the consent decree was not maintainable. This contention is urged for the first time in this Court. The contention relates to jurisdiction of the appellate court and is evident from the record. Such a plea does not require any evidence. Further, being a contention relating to the jurisdiction of the appellate court, it does not require any 'pleading'. Though this Court will not normally permit a new plea to be raised at the hearing of the special leave petition or an appeal under Article 136, where such plea does not involve any question of fact or amendment of pleading and is purely one of law, particularly relating to jurisdiction of the appellate court, it can be entertained by this Court. (See Shanti Devi vs. Bimla Devi - AIR 1988 SC 2141 and Zahoor vs. State of U.P - AIR 1991 SC 41). In Hiralal vs. Kasturi Devi [AIR 1967 SC 1853], this Court observed :

(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) 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 3A.
(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.

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 second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code.