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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 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.

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 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.
(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.