Morium Bibi v. Showkatara Begum — 1994 DIGILAW 62 (CAL)

Judgment Majumdar, J.: 1. This appeal is from the judgment and order passed by the learned Single Judge of this court on 24th February. 1992 dismissing the appellants application for an order that the suit filed by Musst. Showkatara Begum & Ors. against the appellants being Suit No. 724 of 1991 filed in this court is hit by the provisions in Order 23 Rule 3A of the Code of Civil Procedure and be dismissed. The said suit is for a declaration that the decree dated 14th February. 1991 passed pursuant to the terms of the settlement in Appeal No. 205 of 1986 as also the Suit No. 1368 of 1969 filed by Khairunnessa Begum & Ors: against the defendants including Md. Yasin the predecessor-in-interest of the respondent Showkatara Begum & Ors. are void, illegal and not binding upon the plaintiffs. 2. One Haji Md. Rafique, a muslim governed by the Sunni Hanafi School was the owner of plot of land measuring about 5 Cottahs 6 Chittacks being No.6, Madan St., Calcutta and he had a cotton thread business under the name and style of Haji Mohammed Rafique at 10, Chandney Approach. Calcutta. The said Haji Md. Rafique died intestate leaving behind him his widow Walliunnessa Begum and two sons Abdul Karim and Abdul Rashid and a brother Md. Yasin and the said Abdul Rashid died in 1962 leaving behind his widow Zaibunnessa Begum and Abdul Karim died in 1968 leaving behind his widow Khairunnessa Begum as would appear from the following genealogical table. Majid Md. Rafiqile Md. Yasin (brother of Haji Md. Radique) Saliunnessa Abdul Rashid Abdul Karim Begum (widow) (son d. 1962) (son d. 1968) Zaibunnessa Khairunnessa Begum Begum. 3. Sometime in September 1968 the said Abdul Karim executed a Deed of Wakf in respect of the premises No.6, Madan St Calcutta, wherein the said Khairunnessa Begum and Zaibunnessa Begum were confirming parties. One Mustaque Ahmed, since deceased, father of the appellants and one Hasim Abdul Halim were appointed Joint Mutwalis under the said Deed of Wakf. Sometime in 1969 the said Khairunnessa Begum, Zaibunessa Begum and Walliunnessa Begum instituted a suit being Suit No. 1363 of 1969 against Mustaq Ahmed & Ors. praying inter alia, for a declaration that the said alleged deed of wakf dated 17th September. 1968 in respect of the premises No.6. Madan St. Sometime in 1969 the said Khairunnessa Begum, Zaibunessa Begum and Walliunnessa Begum instituted a suit being Suit No. 1363 of 1969 against Mustaq Ahmed & Ors. praying inter alia, for a declaration that the said alleged deed of wakf dated 17th September. 1968 in respect of the premises No.6. Madan St. Calcutta is void illegal and binding upon the plain tiffs and also a declaration that the plaintiffs and the said Md. Yasin the Predecessors-in interest of the plaintiffs are owners of the premises of the said 6. Madan St. Calcutta and other reliefs. The said Md. Yasin, the brother of said Haji Md. Radique was the defendant No.3 in the said suit. It is claimed in the said suit that Md. Yasin had an undivided 147/256th share in the said premises No.6. Madan St. Calcutta. The said Md. Yasin died on 7th June. 1972 leaving behind the respondents Showkatara Begum & Ors. the plaintiffs in the present suit-being Suit No. 724 of 1991. 4. The appellant Morium Bibi is the widow of Mustaq Ahmed the defendant No.1 in the suit being Suit No. 1368 of 1969. The said suit was decreed ex parte on 30th January, 1986. Thereafter, the appellants being the heirs, heiress of the original defendant took out an application under Order 9 Rule 13 of the Code of Civil Procedure for .setting aside the said exparte decree. The said application was also dismissed. The appellants thereafter preferred an appeal from both the order and the decrees. During the pendency of the said appeal, a Terms of settlement was filed by the contesting parties. According to the appellants, all along in the trial court as also in the appeal court the plaintiff in the suit and also the appellants were contesting the suit as also the appeal. It is also the case of the appellants that the defendant No. 3 the said Md. Yasin the predecessor-in-interest of the plaintiffs in the present suit the respondents in this appeal never contested the said appeal nor the suit in the trial court. By the said Terms of settlement put in the appeal court, the property being premises No.6, Madan St. Calcutta was allotted in two lots, one in favour of the wakf property and the other in favour of the secular property. The allegations and counter allegations were withdrawn. By the said Terms of settlement put in the appeal court, the property being premises No.6, Madan St. Calcutta was allotted in two lots, one in favour of the wakf property and the other in favour of the secular property. The allegations and counter allegations were withdrawn. The appeal Court passed a decree in accordance with the said Terms of Settlement setting aside the ex parte decree passed by the trial Court. The appeal was accordingly disposed of on 14th February, 1991. 5. The respondents in the suit Showkatara Begum & Ors, the successor of Md. Yasin have instituted a suit being the present suit No. 724 of 1991 claiming a declaration in the present suit that the said decree dated 14th February, 1991 passed by the appeal court pursuant to the Terms of Settlement in Appeal No. 205 of 1986 and the said suit No. 1368 of 1969 and also the said Terms of Settlement are void, illegal and not binding upon the plaintiffs. The decree directing the defendants to deliver on the said purported terms of settlement and injunction restraining the defendants from interfering or obstructing the 'possession and enjoyment of the said 'premises' by the plaintiffs in any way; Receiver; costs and further or other reliefs, This suit is filed against the appellant Morium Bibi & Ors. 6. The appellant Morium Bibi took out an application before the trial court for dismissal of the present suit being Suit No, 724 of 1991 instituted by tile respondent Showkatara Begum &. Ors, against the appellants Morium Bibi & Ors. on the ground that the plaint in the suit is barred by the provisions of Order 23 Rule 3A of the Code of Civil Procedure which provides that no suit shall lie to set aside the decree on the ground that compromise on which the decree is passed is not lawful. The appellants being the petitioners claimed that the suit is liable to be dismissed as being barred by Order 23 Rule 3A of the Code of Civil Procedure. As stated above, the application taken out by the appellants Morium Bibi & Ors. was dismissed and the directions for filing written statement were given., This appeal is against such order of the trial court. 7. As stated above, the application taken out by the appellants Morium Bibi & Ors. was dismissed and the directions for filing written statement were given., This appeal is against such order of the trial court. 7. The question involved in this appeal is whether the said Terms of Settlement on the basis of which the said decree dated 14th February, 1991 was passed can be challenged by an application under Rule 3 of Order 23 of the Code of Civil Procedure or by an appeal under Section 96(1) of the Code of Civil Procedure, or by an independent suit. It is contended on behalf of the appellants that if the respondents Showkatara Begum and Others want to challenge the said Terms of Settlement on this basis of which the said decree was passed by the appeal court, then such challenge can only be made in the forum which passed such, decree on the basis of the said Terms of Settlement. If however, the plaintiffs-respondents choose to challenge the said Terms of Settlement or the decree on the basis thereof by an independent suit, as has been done in the instant case, then such suit would attract the bar provided by Rule 3A of Order 23 of the Code of Civil Procedure. 8. It is the contention on behalf of the plaintiffs-respondents that the predecessor-in-interest of the plaintiffs-in-respondents, the said Md. Yasin, the defendant No. 3 in the said suit No. 1368 of 1979 (1) Khairumessa & Ors. v. Mustaq was not a party to the said Terms of Settlement on the basis of which the decree was passed. It is the contention on behalf of the respondents that the said Terms of Settlement on the basis of which the said decree was passed by the appeal Court is not binding on the plaintiffs-respondents on the ground that the same is not lawful, and further that the said Terms of Settlement was not signed by said Md. Yasin, the said predecessor-in-interest of the present plaintiffs-respondents nor was he a party to the same. It is therefore, the submission on behalf of the plaintiffs-respondents that the said compromise decree is therefore not binding on the said Md. Yasin the defendant No.3 in the earlier suit as also his heirs and representatives being the plaintiffs in the present suit. 9. It is therefore, the submission on behalf of the plaintiffs-respondents that the said compromise decree is therefore not binding on the said Md. Yasin the defendant No.3 in the earlier suit as also his heirs and representatives being the plaintiffs in the present suit. 9. The learned counsel for the plaintiffs respondents has also submitted that the provisions contained in Order l3 Rule 3 and also Rule 3A of the Code of Civil Procedure have to be construed as a whole and Rule 3A cannot be lead in isolation. The learned counsel has also submitted that the said Terms of Settlement on the basis of which the said decree was passed by the appeal court is relatable to the first part of the Order 23 Rule 3 of the Code of Civil Procedure and since the said Terms of Settlement not being signed by Md. Yasin the defendant No.3 in the suit and the predecessor-in-interest of the present plaintiffs the said Terms of Settlement is not binding on Md. Yasin as also his heirs and representatives being the present plaintiffs. It is the submission by the learned counsel on behalf of the plaintiffs-respondents that the expression 'compromise' as contained in Rule 3 Order 23 of the Code of Civil Procedure is a compromise as contemplated in the first part of Rule 3 Order 23 of the Code of Civil Procedure where it is provided that the compromise should be in writing and signed by the parties and it is the further, submission on behalf of the respondents that if such compromise is not signed by Md. Yasin, predecessor-in-interest of the present plaintiffs then it is not a compromise so far as the said Md. Yasin as also the present plaintiffs-respondents are concerned within the meaning of first part of Rule 3 Order 23 of the Code of Civil Procedure. It is therefore, the final submission on behalf of the plaintiffs-respondents that the bar as provided in Rule 3A Order 23 of the Code of Civil Procedure is not applicable and the present suit filed by the plaintiffs respondents is not hit by the provisions of the said Rule 3A Order 23 of the Code of Civil Procedure. 10. It is therefore, the final submission on behalf of the plaintiffs-respondents that the bar as provided in Rule 3A Order 23 of the Code of Civil Procedure is not applicable and the present suit filed by the plaintiffs respondents is not hit by the provisions of the said Rule 3A Order 23 of the Code of Civil Procedure. 10. The learned counsel for the appellants and also the learned counsel for the other supporting respondents have contended that after the 'amendment of Order 23 and insertion of a new Rule being Rule 3A by Amendment Act, 1976 the only forum left to the parties aggrieved by the compromise on the basis of which the decree has been passed is the forum which passed such decree and no independent suit can be instituted by the aggrieved party challenging the compromise decree in view of the specific bar provided in Rule 3A Order 23 of the Code of Civil Procedure. The learned counsel for the appellants has cited a recent Supreme Court decision in (2) Banwarilal v. Chalidu Devi, AIR 1993 SC 1139 . The appellants have also referred to a decision of this court reported in (3) AIR 1982 Cal 12 , Iswar Gopal Jew v. Bhagawan Das. The plaintiffs respondents have cited an authority of the Allahabad High Court reported in (4) A1R 1990 Allahabad 75. 11. It is not in dispute that the said Md. Yasin the predecessor-in-interest of the present plaintiff respondents and the defendant No.3 ill the earlier suit was not a party to the said Terms of Settlement on the basis of which the said decree dated 14th Februry. 1991 was passed by the appeal court. it will also appear from the decree of the trial court in the said earlier suit being decree dated 30th January, 1936. that it has recognised the right of the said Md. Yasin as owner of the premises No.6, Madan St. Calcutta to the extent of his 147/256 th share as claimed in prayer (c) of the plaint in the said earlier suit being Suit No. 1368 of 1969. It is also true that the decree passed by the appeal Court dated 14th February. 1991 by which the decree of the trial Court dated 30th January, 1986 was varied or modified is adverse to the interest of said Md. Yasin, the predecessor-in- interest of the present plaintiffs-respondents. It is also true that the decree passed by the appeal Court dated 14th February. 1991 by which the decree of the trial Court dated 30th January, 1986 was varied or modified is adverse to the interest of said Md. Yasin, the predecessor-in- interest of the present plaintiffs-respondents. 12 Order 23 Rule 3 provides as follows ;- "3. Where it is proved to the satisfaction of the courts that the suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by 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 a, the subject matter of the suit) : (Provided that where it is alleged by one party and 'denied by the other' that an adjustment of 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). 3A No suit shall lie to set aside a decree on the ground that the compromise on which the decree is passe was not lawful"'. 13. It will appear from the proviso to Rule 3 Order 23 of the Code of Civil Procedure that where it is alleged by one party and denied by the other that the adjustment of satisfaction has been arrived at the Court shall decide the question. Now the question arises here which court shall decide with question. 14. 13. It will appear from the proviso to Rule 3 Order 23 of the Code of Civil Procedure that where it is alleged by one party and denied by the other that the adjustment of satisfaction has been arrived at the Court shall decide the question. Now the question arises here which court shall decide with question. 14. The Supreme Court in the case of Banwarilal v. Chandu Devi (supra) had occasion to consider the scope of Rule 3A of Order 23 of the Code of Civil Procedure as also Rule 3A of Order 23, The Supreme Court, inter alia, observed that a party challenging the compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, In which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code 15 The Supreme Court also observed that Section 96(3) of the Code says that no appeal shall lie from a decree passed by the court with the consent of the parties Rule 1A(2) has been introduced saying that against a decree passed in a suit after recording a compromise. it shall be open to the appellant to contest within the ground that the compromise should not have been recorded, when Section 9 (3) bars an appeal against decree passed with consent of the parties it implies such a decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties, One such remedy available was by filing an appeal under Order 43 Rule l(m). Therefore a party who will question the validity of the compromise decree may prefer an appeal against the decree under Rule 1A(2) of Order 43 and in that case Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) of the Code is applicable to cash where the factum of compromise or agreement is not in dispute, The conclusion arrived at by the Supreme Court in the said decision is therefore that a party challenging a compromise can either file a petition under proviso to Rule 3 of Order 23 of an appeal under Section 96(1) of the Code on which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code of Civil Procedure. The view taken by this court in AIR 1982 Cal12 (supra) is also same. 16. It will therefore appear from the above that after the amendment of the said provisions of the Code in 1976, the only forum left to the aggrieved party seeking to challenge the compromise decree is the forum or the court which passed such decree on the basis of the compromise it therefore appears to us that in the instant case the suit filed by the plaintiffs respondents seeking to challenge the said compromise is clearly barred by the provisions of Rule 3A of Order 23 of the Code of Civil Procedure. 17. The learned counsel appearing on behalf of the plaintiffs respondents has relied on a decision of the Allahabad High Court reported in (5) AIR 1991 Allahabad 75. The Allahabad High Court in the said decision AIR 1991 All 75 , Suraj Kumari v. District Judge, Mirzapur has observed that the provisions of Order 23 Rule 3A of the Code of Civil Procedure is only confined to the parties to the snit. The said provision is not applicable to a stranger to the said compromise decree, A suit by a stranger to set aside the compromise decree which affects his right is not barred by the said provision contained in Rule 3A of Order 23 of the Code of Civil Procedure. The said provision is not applicable to a stranger to the said compromise decree, A suit by a stranger to set aside the compromise decree which affects his right is not barred by the said provision contained in Rule 3A of Order 23 of the Code of Civil Procedure. The Allahabad High Court bas also observed that the provision in Rule 3A is only a part of the entire chapter of the Order 23 of the Code which prescribes the provisions for withdrawal and adjustment of the suit and the provisions contained in Rule 3A cannot be read de-hors its earlier provision. It is contended by the learned counsel appearing for the plaintiffs-respondents that admittedly the said Md. Yasin was not a party to the said Terms or Settlement being the compromise all the basis of which the decree was passed. It will, however, appear that the said Mq. Yasin was not a stranger to the suit. He was very much a party being defendant No. 3 in the suit. The said Md, Yasin could have or the present plaintiffs respondents may have a genuine ground challenging such compromise decree, hut such challenge cannot be made by instituting an independent suit after the amendment in 1976 and, as has been held by the Supreme Court, the remedy or the party aggrieved with the compromise decree is either to file in appeal under Section 96(1) of the Code of which he case now question the validity of the compromise in view of Rule 1A of Order 43 of the Code, or to file a petition under proviso to Rule 3 Order 23 of the Code of Civil Procedure. Therefore, in our view no independent suit challenging the compromise on the ground of fraud or otherwise is competent in view of specific bar provided in Rule 3A Order 23 of the Code of Civil Procedure. It is true that prior to the amendment in 1976 the aggrieved party could file a suit for setting aside such compromise decree on the ground that the decree was passed on an invalid and illegal compromise not binding on the plaintiffs in the second suit, but, as held by the Supreme Court in Banwarilal case (supra). 18. It is true that prior to the amendment in 1976 the aggrieved party could file a suit for setting aside such compromise decree on the ground that the decree was passed on an invalid and illegal compromise not binding on the plaintiffs in the second suit, but, as held by the Supreme Court in Banwarilal case (supra). 18. It, therefore, appears to us that only forum left to the plaintiffs-respondents is the forum which passed the decree in accordance with the said Terms of Settlement and the specific bar as provided in Rule 3A Order 23 of the Code of Civil Procedure would stand on the way of the plaintiffs-respondents filing an independent suit challenging the said compromise decree: 19 It has been contended also on behalf of the plaintiffs-respondents the said compromise not being signed by Md. Yasin .the defendant No.3 in the said suit is not a 'compromise' within the meaning of Order 23 Rule 3 of the Code of Civil Procedure. We do not want to express any opinion on this as such point is available to the party aggrieved with the said compromise decree before the forum where such compromise would be challenged. 20. We therefore set aside the order of the trial court dated 24th February, 1992 in the present suit No. 724 of 1991 (Showkatara Begum v. Morium Bibi) wherein the learned single Judge has held that the court was unable to appreciate the submission that the plaint did not disclose .any cause of action or that it was hit by the provisions of Order 23 Rule 3A of the Code of Civil Procedure. We hold that the said compromise decree can be challenged by the plaintiffs-respondents on the ground of fraud or any other grounds including that the said. Md. Yasin not being a party to the compromise decree the same was not binding on the said Md. Yasin as also his heirs and representatives being the plaintiffs. But such compromise decree can only be challenged not by an independent suit but by a petition under the proviso to Rule 3 Order 23 of the Code of Civil Procedure before the court which passed the said decree or by preferring an appeal from the said decree being the compromise decree. The suit No. 724 of 1991 (Musst. But such compromise decree can only be challenged not by an independent suit but by a petition under the proviso to Rule 3 Order 23 of the Code of Civil Procedure before the court which passed the said decree or by preferring an appeal from the said decree being the compromise decree. The suit No. 724 of 1991 (Musst. Showkatara begum & Ors v. Morium Bibi & Ors.) being barred by law is dismissed and the plaint be taken off the file. For the reasons aforesaid this appeal is allowed. There will be no order as to costs. All parties to act on a signed copy of the minutes of the operative part of this judgment on the usual undertaking. Banerjea, J: I agree.