VIMLA KUMARI GWAL v. SATISH KUMAR YADAV — 1997 DIGILAW 487 (ALL)

D. K. SETH, J. The plaintiff-opposite party had filed a suit for partition in the Court of learned II Additional Civil Judge (Senior Division) Varanasi being Original Suit No. 551 of 1995. The defendant-ap plicant had filed suit for declaration being Original Suit No. 752 of 1994 denying the title and interest of the plaintiff-opposite party in respect of the property sought to be partitioned in Original Suit No. 551 of 1995. The plaintiff opposite party filed Original Suit No. 613 of 1994 against one Sri Pradip. Kumar Yadav for injunction. The said Pradip Kumar Yadav filed Original Suit No. 750 of 1994 against the plaintiff-opposite-party for injunction. On 17th November 1995 a petition of compromise between the plaintiff and the defendant were filed in Original Suit No. 551 of 1995. In the said compromise filed in Original Suit No. 551 of 1995 other three suits mentioned above were also sought to be decided in terms of the compromise between the parties. By an order dated 18th November 1995 in the presence of learned Counsel for both the parties, both the parties had verified the compromise. Accordingly the learned Civil Judge had passed a Compromise decree on 19th November, 1995. Subsequently the Plaintiff-opposite party filed Execution case No. 5 of 1996 before the learned Civil Judge. In the said Execution case the ap plicant had filed an application inscribing the same to be one under Order IX Rule 13 read with Section 151 and Order XXIIi Rule 3-Aof the Code of Civil Procedure and prayed for setting aside the compromise decree sought to be executed which was registered as Misc. Case No. 10 of 1996, arising out of Execution Case No. 5 of 1996. By an order dated 16-9-1996 the defendant-applicants application was rejected. Against the said order dated 16-9-1996 the present Revision petition has been filed. 2. Sri M. D. Singh, learned Counsel for the Plaintiff-opposite party assails the said Civil Revision as not maintainable and had prayed for vacating the interim order granted on 1st October 1996 in the present revision. Sri Sankatha Rai, learned Counsel for the defendant-applicant on the other hand opposes the contention of Sri M. D. Singh. In support of their rival contentions both the learned Counsel for the parties had addressed the court extensively on the merit of the case itself. Sri Sankatha Rai, learned Counsel for the defendant-applicant on the other hand opposes the contention of Sri M. D. Singh. In support of their rival contentions both the learned Counsel for the parties had addressed the court extensively on the merit of the case itself. Both the learned Counsel for the parties had agreed that in stead of hearing the matter for vacating stay order since the parties are represented, the matter may be heard on merits and may be decide finally. By consent of the parties the revision application is heard on merits ac cordingly. 3. Sri Singh raises three points, firstly, that the application is not maintainable in view of Order XLIII Rule 1-A, sub-rule (2) of the Code of Civil Procedure. Providing appeal against recording of compromise. Inasmuch as in view of specific provisions Section 151 of the Code can not be applied. Similarly Order IX Rule 13 of the Code of Civil Procedure can not be attracted since the order was not an ex-pane order. His second contention was that even on merits there is nothing to enable the court to allow the said application. The third contention of Mr. Singh is that the revision itself is not maintainable because the learned Civil Judge had rightly decided the case and there is no question of illegal exercise of jurisdic tion or failure to exercise jurisdiction caus ing irreparable injury on the defendant-ap plicant since the remedy of the petitioner was open under Order XLIII Rule 1-A (2) of the Code. 4. S. Rai on the other hand contends that even despite existence of Order XLIII Rule 1-A (2) of the Code Section 151 is very much applicable in view of the facts and circumstances of the case. His second con tention is that on merit there are sufficient grounds to interfere with the order record ing compromise. His third contention was that the revision is very much maintainable since the learned Civil Judge decided the matter without allowing the defendant-ap plicant to examine witnesses though prayed for and had held that the application is not maintainable and thereby had failed to exer cise his jurisdiction or had exercised his jurisdiction illegally. 5. After having heard the learned Counsel for the parties it appears that the facts and the dates are more or less ad mitted. 5. After having heard the learned Counsel for the parties it appears that the facts and the dates are more or less ad mitted. Admittedly, the defendant-ap plicant was present in the court when com promise was recorded. It is not contended by the defendant-applicant that the order was passed ex-pane. No such case was made out in the application for setting aside the com promise decree. Order IX Rule 13 of the Code of Civil Procedure is the procedure laid down for setting aside ofex-parte decree on the conditions mentioned therein. It is not the case that no notice was served on the defendant- applicant or that she had no notice of the suit which was compromised. It was neither the case that the decree was passed ex-parte. The case that was made out in the application was that the order of com promise was obtained by undue influence and coersion etc. Therefore, Order IX Rule 13 of the Code of Civil Procedure can not have any manner of application. According ly, it was rightly held by the learned Civil Judge that the defendant-applicant can not ask for setting aside the compromise decree under Order IX Rule 13. A decree on com promise is passed in between the two per sons who are present before the Court. Therefore, it can be no stretch of imagina tion be an ex. pane one as between the par ties seeking compromise. 6. The Procedure for compromise is provided in Order XXIII. Order IX deals with completely different situation. By no stretch of imagination a situation falling within the ambit of Order XXIII can be brought within the purview of Order IX. Order IX deals with dismissal of suit for default and passing of decree ex- pane and the procedure for obtaining orders setting aside such orders. Only cases falling with the purview of Order IX can be dealt with under the said provisions. The situation envisaged in the fact and circumstances of this case does not come under Order IX. Admittedly, a compromise decree was passed. If the same is sought to be set aside then the provisions as contemplated in Order XXIII are to be resorted to. Therefore Order IX Rule 13 can not be invoked, as rightly held by the learned Executing Court, in the facts of the present case. 7. Admittedly, a compromise decree was passed. If the same is sought to be set aside then the provisions as contemplated in Order XXIII are to be resorted to. Therefore Order IX Rule 13 can not be invoked, as rightly held by the learned Executing Court, in the facts of the present case. 7. Now with regard to the question of maintainability of Section 151 of the Code is to be looked into in the light of existence of Order XLIII Rule 1-A (2) of the Code. Now the application has been inscribed as an application under Order IX Rule 13 read with Section 151 and Order XXIII Rule 3-A of the Code. The inscription of the applica tion is not the determining factor. In as-much as even if a wrong provision is quoted the same would not determine the nature and character of the application. It is the pleading and prayer which makes out sub stance of the application. The nature and character of the application is to be deter mined on the basis of pleading and prayer made haying regard to the substance of the application. Therefore, even if Order IX Rule 13 of the Code is Hot attracted, in the facts and circumstances of the case, still then the application can not be rejected on that ground alone. Therefore, it is more neces sary to examine as to whether the applica tion under Section 151 of the Code read with Order XXIII Rule 3-A is maintainable or not. If it is found maintainable only then this court is required to enter into merits of the case. 8. Order XXIH Rule 3-A of the Code does not provide for any procedure for set ting aside a compromise decree. On the other hand Rule 3-A prohibits a suit, "to set aside the decree on the ground that the compromise on which decree is based was not lawful. " The bar created in the matter of filing suit to challenge the compromise decree does not postulate any procedure to be laid down. Therefore reference of Order XXIII Rule 3-A is wholly irrelevant. The view which I have taken that the caption of the application even if wrongly quoted does not affect the maintainability or merit of the application itself. Therefore reference of Order XXIII Rule 3-A is wholly irrelevant. The view which I have taken that the caption of the application even if wrongly quoted does not affect the maintainability or merit of the application itself. Therefore it can very well be looked into as to whether the application which under Section 151 of the Code of Civil Procedure is maintainable to set aside the compromise decree when suit to that end is prohibited. Admittedly, the defendant-ap plicant is a party to the suit and not stranger. Therefore, is hit by the said provision. 9. According to Mr. M. D. Singh in view of existence of Order XLIII Rule 3-A (2) of the Code, Section 151 can not be main tained. In support of his contention he seeks to rely upon the decision in the case of Banwarilal v. Chando Devi (Smt.) through LRS and Ann, 1993 (2) ACJ 787, but the said judgment does not help Mr. Singh to his contention that the application under Sec tion 151 is not maintainable. 10. Rule l (m) of Order XLIII provides an appeal against the order under Order XXIII Rule 3 recording or refusing to record agreement, compromise or satisfac tion. By the Amending Act of 1976 Rule 1 (n) of Order XLIII has been deleted. On the other hand Rule 1-A has been introduced in Order XLIII. Rule 1-A in sub-rule (2) provides appeal against the decree passed in a suit after recording the compromise or refusing to record compromise it shall be open to the appellant to contest the decree on the ground that the compromise should or should not have been recorded. " 11. Section 96 (3) of the Code provides that "no appeal shall lie from a decree passed by the Court with the consent of the parties. "rule 1-A (2) of Order XLIII as in troduced and Rule l (m) of Order XLIII as deleted provided an appeal against the order recording or refusing to record a com promise. There is no inconsistency in Sec tion 96 (3) and Order XLIII Rule l (m) as substituted by Rule (2 ). Inasmuch as Order 96 Rule 3 operates where there is no dispute with regard to the factum of compromise or the Agreement. The appeal is available where recording or refusal to record com promise is sought to be challenged. There is no inconsistency in Sec tion 96 (3) and Order XLIII Rule l (m) as substituted by Rule (2 ). Inasmuch as Order 96 Rule 3 operates where there is no dispute with regard to the factum of compromise or the Agreement. The appeal is available where recording or refusal to record com promise is sought to be challenged. Rule 1-A (2) of Order XLIII is attracted. The chal lenge is with regard to the question of recording compromise and consequently to such challenge the decree is also challenged that the same ought to or not to have been recorded since the Agreement or the com promise was not valid or was disputed. Such appeal is not an appeal against a decree within the meaning of Section 96 but an appeal against the order recording or refus ing to record compromise. 12. In the case of Banwarilal (supra) it is held as follows: "the application for exercise of power under Proviso to Rule 3 of Order XXIII can be lebelled under Section 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in ap propriate cases has to be exercised under the said Proviso to Rule 3. It has been held by different High Courts that even after a compromise has been recorded, the court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the com promise. Reference in this connection may be made to the cases of Tara Bai (Smt.) v. VS. Krish-naswamy Rao, AIR 1985 Kant. 270 : ILR 1985 Kan 2930 S. G. Thimmappa v. T. Anantha, AIR 1986 Kant. 1: ILR 1985 Kant. 1933, Bindeshwari Prasad Chaudhary v. Debendra Prasad Singh, AIR 1958 Pat 618 : 1958 BLJR 652; Mongol Mohton v. Behari Mahton, AIR 1964 Pat 483 : 1964 BLJR 727 and Sri Sri Iswar Copal Jew v. Bhawandas Shaw, AIR 1982 Cal 12 where it has been held that application under Section 151 of the Code is maintainable. 1933, Bindeshwari Prasad Chaudhary v. Debendra Prasad Singh, AIR 1958 Pat 618 : 1958 BLJR 652; Mongol Mohton v. Behari Mahton, AIR 1964 Pat 483 : 1964 BLJR 727 and Sri Sri Iswar Copal Jew v. Bhawandas Shaw, AIR 1982 Cal 12 where it has been held that application under Section 151 of the Code is maintainable. The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that court has to be decided whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. The learned subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the the question as to whether there had been a lawful agreement or compromise on the bais of which the court could have recorded such agree ment or compromise on February 27, 1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that order. " Therefore despite existence of Rule 2-A of Order XLIII which has since been dealt with in the case of Banwarilal (supra) it was held that application under Section 151 is very much maintainable in such cases. Therefore, I am unable to agree with the contention of Mr. Singh that the application under Section 151 is not maintainable. It is the party who has to make a choice whether he will make application under Section 151 of the Code of Civil Procedure or prefer an appeal under Order XLIII Rule 1-A (2 ). Simple because of existence of the provisions of appeal application under Sec tion 151 can not be thrown out in view of the decision of the Apex Court in the case of Banwari Lal (supra ). In that view of the matter I am unable to agree with the conten tion of Mr. Singh that Section 151 is not attracted and the application is not main tainable. 13. In that view of the matter I am unable to agree with the conten tion of Mr. Singh that Section 151 is not attracted and the application is not main tainable. 13. Order XXIII Rule 3 requires that the court recording compromise is satisfied on being proved that the suit has been ad justed wholly or in part by a lawful agree ment or compromise in writing and signed by the parties. Only upon such proof to the satisfaction of the Court, the Court shall order such satisfaction, agreement or com promise to be recorded and thereupon pass a decree in accordance therewith. Proviso to Rule-3 prescribes that if it is alleged by one party and denied by other, that adjustment or satisfaction has been arrived, it is the duty of the Court to decide the question without granting any adjournment unless the Court thinks so fit and that too after recording reasons therefor. The explanation provides that agreement or compromise which is void or voidable under the Contract Act shall not be deemed to be lawful within the meaning of Rule 3 Order XXIII. 14. Therefore, while recording the compromise a duty is cast upon the Court to record that it has been proved to its satisfac tion that the compromise is effected and it is open to the party to deny the same at the time when compromise is recorded. The person denying it may also ask for adjourn ment. Normally the Court would not ad journ but only on the reasons to be recorded mayadjourn. 15. Thus the Court has very jurisdic tion to examine whether the agreement or compromise is lawful within the meaning of the explanation to Rule 3 of Order XXIIl 16. In the present case, the application for compromise was filed on 17-11-1996 and the same was recorded on 18th November 1995. Admittedly, both the parties were present and had signed the compromise. Both the learned Counsel representing each of the parties were present and had signed the compromise. The Court had recorded compromise after it was proved to its satisfaction about adjustment. My atten tion was drawn to the contents of the com promise. Nothing has been shown to be un lawful. Sri Rai also does not point out any thing to show that the compromise is not lawful or that any part of the compromise or agreement is unlawful. My atten tion was drawn to the contents of the com promise. Nothing has been shown to be un lawful. Sri Rai also does not point out any thing to show that the compromise is not lawful or that any part of the compromise or agreement is unlawful. Admittedly, when the compromise was recorded it was not denied by the defendant-applicant. Neither the defendant-petitioner had applied for adjournment nor such a case is made out by the defendant-petitioner. The defendant petitioner did not apply for setting aside the compromise decree till the execution was levied. The application for compromise was filed on 9-2-1996 together with the applica tion under Section 5 of the Indian Limita tion Act, in the execution proceedings after it was initiated. No appeal was preferred against the said compromise. The only ground on which the compromise is chal lenged is that the compromise was obtained on the threat that the plaintiff will lodge some other case against the defendant-petitioner, as has been stated in para 7 of the affidavit filed in support of the application. The defendant-petitioner was contesting for the post of Mayor in Varanasi Municipal Corporation, the election whereof had taken place on 16-11-1995 and she lost the election with small margine of. votes. She was further threatened that unless she ac cepts the compromise she would be defamed. Therefore the compromise was against public policy. Accordingly, she has made out a case that the compromise is void. 17. No case is made out to bring the compromise within Section 23 of the Con tract Act to be unlawful. It has not been pleaded that the compromise is forbidden by law or that the compromise, if allowed, would defeat the provisions of any law or is fraudulent or otherwise. It is also not a case, as made out, within meaning of Section 20 of the Contract Act that there was any mis take as to the matter of fact essential to the agreement. Though it has been sought to be made out that the valuation of the property was shown to have been less, but the same is not the factor in view of explanation to Sec-tion- 20 of the Contract Act. However, the Civil Court has found that the valuation was correct since the same valuation appears on the document through which the property was acquired. However, the Civil Court has found that the valuation was correct since the same valuation appears on the document through which the property was acquired. It is not alleged that the agree ment is without consideration or has been entered into with minor or a person of un sound mind. Therefore, by no stretch of imagination the compromise can be said to be void agreement. At best the case as made out can be fitted in Section 19 of the Con tract Act as voidable namely consent was obtained by coersion, fraud or misrepresen tation. But no case has been made out that any information was put forth by the plain tiff which was not true to make the defen dant believe to be true. Therefore, it can not be said to be mis-representation within meaning of Section 18 of the Contract Act. The case can not also be brought within meaning of fraud as defined in Section 17 of the Contract Act. It has not been contended that there is any attempt to deceive the defendant or to enter into contract with regard to any suggestion of fact which is not true, which she has believed to be true or that there was any concealment of fact or that the compromise made without any in tention or performing it or any Act intend ing to deceive or otherwise. On the other hand in terms of the compromise it is al leged that the other suit have since been withdrawn by the plaintiff. The case also can not be brought within definition of undue influence as defined in Section 16 of the Contract Act. No such relation has been pleaded that the plaintiff was in a position to dominate the will of the defendant for ob taining unfair advantage over her. No feduciary relationship is being sought to be established between the parties. Neither it is pleaded that her mental capacity was af fected by age, illness or bodily distress. There being strained relationship between the parties and the suit having been going on there was no question of exerting influence on the plaintiff within meaning of Section 16 of the Act. Though it was sought to be pleaded that there was coersion in obtaining the consent of the defendant but the same also does not come within definition of coersion as defined in Section 15. Though it was sought to be pleaded that there was coersion in obtaining the consent of the defendant but the same also does not come within definition of coersion as defined in Section 15. coersion is defined as "committing or threatening to commit any act forbidden by the Indian Penal Code or unlawful detaining or threatening to detain any property to the prejudice of any person, whatever with the intention of causing any person to enter into the Agreement/the alleged threat that he will institute Criminal case against the defendant-petitioner is not an act forbidden by the IPC. There was no allegation of detaining or threatening to detain any property to the prejudice of the defendant. The only claim that has been made is that the plaintiff had threatened her to defame by instituting criminal cases against her. In the affidavit filed in support of her applica tion the petitioner had in para 5 stated that the plaintiff had filed criminal cases against her and her husband and other sons, which are pending in the Criminal Court, apart from that he has also lodged several false first information reports against her and her husband which have since been registered and investigated by the police concerned that she and members of the family have obtained bail in such criminal cases. There fore there is no scope for saying that she is being threatened of filing "criminal cases against her. Such criminal case has already been filed as against her. Therefore, there can not be ?ny further threat, if more criminal cases are filed and that would not have any more effect of defaming her. 18. For all these reasons it cannot be said that consent in the compromise was obtained in violation of Section 14 of the Contract Act. 19. As soon such an application is made it is open to the court to examine the same as to whether it can be decided on the basis of material available on record. If any prayer is made for adducing evidence in support of the case made out, it is for the court to decide whether such permission is to be granted or not. An application under Section 151 of the Code is normally decided on affidavit. If any prayer is made for adducing evidence in support of the case made out, it is for the court to decide whether such permission is to be granted or not. An application under Section 151 of the Code is normally decided on affidavit. Only when the Court comes to a finding that evidence other than affidavit is necessary then it might permit such an evidence to be adduced by the party praying. In the facts and circumstances of the case, as it appears, there is no scope for permitting the defendant-petitioner to adduce evidence. In asmuch as no such case was made out in the application which is re quired to be gone into through evidence. Since the case made out by the defendant-petitioner herself does not spelt out a case of voidable agreement, as observed earlier, there is no scope of adducing evidence to support such case which has not at all been made out. Therefore, it can not be said that the learned Court below has failed to exer cise his jurisdiction or had illegally exer cised his jurisdiction in refusing permission to adduce evidence by the defendant petitioner. 20. Then again admittedly as has been pleaded in the affidavit filed in support of the application the election of Mayor was held on 16-11-1995 and she had lost the election. Whereas the compromise was filed on 17-11-1995 and order was passed on 18th November 1995 after the election was over. Therefore, there is no question of defaming the defendant-petitioner to have any bad effect upon her election. Even on the facts disclosed by her own statement made in para 8 of the said affidavit the allegation that her consent was obtained through threat, as has been sought to be made out does not stand to reason. 21. When an application for setting aside compromise decree is made, it is the duty of the court to examine the same and come to an appropriate decision on the merit of the case. Learned trial Court has accordingly come to such a decision. Sri Rai has furnished English translation of the im pugned order. I have carefully gone through the said order and have not been able to find out anything which can lead to conclude that the order passed by the learned trial Court is perverse. or based on no material. Learned trial Court has accordingly come to such a decision. Sri Rai has furnished English translation of the im pugned order. I have carefully gone through the said order and have not been able to find out anything which can lead to conclude that the order passed by the learned trial Court is perverse. or based on no material. The learned Counsel for the petitioner also has not been able to draw my attention to any such material either from the said order or from any of the Annexures or record brought before this Court that the finding arrived at by the trial Court is perverse, so far as the merit is concerned, 22. Therefore, in view aforesaid, though on a different ground, as observed above, I do not find any reason to interfere with the order dated 16-8-1996 since im pugned in the present application. The revision application therefore, fails and is accordingly dismissed. There will, however, be no order as to costs. Revision dismissed. .