Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 85 (MP)

Balmukund v. Bhujbal Singh

2002-01-23

S.P.KHARE

body2002
ORDER 1. These four revisions arise out of a common order by which the applications of the judgment-debtors under section 47, CPC in execution proceedings have been rejected and the decree-holders have been directed to pay court-fee so that these proceedings may go on. 2. Balmukund filed Civil Suit No. 20-B of 1995 against Bhujbal and his four brothers for recovery of Rs. 43,200/- as damages for wrongfully restraining him from going to his land Khasra No. 159 area 1.52 acre of village Bilori and cutting his crops. Similarly Shankerlal brother of Balmukund filed Civil Suit No. 21-B of 1995 against these persons for recovery of Rs. 64,000/- as damages for wrongfully restraining him from going to his land Khasra No. 160 area 2.29 acres of the same village and cutting the crops. The plaintiffs in these two suits claimed exemption from payment of court-fee under the notification issued by the State Government under section 35 of the Court-fees Act on the ground that they belong to Scheduled Caste and the income of each of the two is less than Rs. 6,000/- per annum. On inquiry the Court found that their income is more than the prescribed limit and, therefore, they were directed to pay court-fee on their plaints. This order remained uncomplied. On 15.12.1995 the parties to the suit filed an application under Order 23 rule 3, CPC (wrongly describing it as under Order 23 rule 1, CPC) before the Court. This compromise was recorded and the decrees were passed in both the suits in terms of the compromise. According to these decrees the two plaintiffs were directed to execute registered sale-deed in respect of the lands mentioned above in favour of the defendants No.1 to 5 for a total consideration of Rs. 1,00,000/-. It was stated in the decrees as per compromise that an amount of Rs. 11,000/- has been received by the vendors and they would receive the remaining amount of Rs. 89,000/- upto 15.6.1996 at the time of registration. 3. The sale-deeds were not executed as per compromise decrees. Therefore, the defendants as decree-holders applied for execution and registration of the sale-deeds through the Court. 11,000/- has been received by the vendors and they would receive the remaining amount of Rs. 89,000/- upto 15.6.1996 at the time of registration. 3. The sale-deeds were not executed as per compromise decrees. Therefore, the defendants as decree-holders applied for execution and registration of the sale-deeds through the Court. In these execution proceedings the plaintiffs-judgment-debtors filed applications under section 47, CPC raising the objections that the decrees are not executable because (a) the compromise was the product of coercion and undue influence and therefore it was not lawful, (b) no amount was paid to the plaintiffs as stated in the petition, (c) the compromise could not be recorded as it was outside the scope of the suit, (d) the court-fee was not paid on the plaints and, therefore, the compromise petition could not be filed in such suits and (e) the plaintiffs belong to Dhobi caste and they could not sell the lands without the permission of the Collector. The executing Court rejected these objections mainly on the ground that it could not go behind the decree to examine its validity but directed the defendants-decree holders to pay the court-fee which was payable on the plaints. 4. After hearing the learned counsel for both the sides this Court is of the opinion that the learned counsel for the plaintiffs-judgment debtors did not follow the correct procedure in challenging the compromise decrees. It could not be done through the application under section 47, CPC in execution proceedings. It appears from the impugned order that the counsel for the plaintiffs cited the decision of the Supreme Court in Banwarilal v. Chanda Devi [ AIR 1993 SC 1139 ], but he did not study this judgment or he could not understand the law which has been laid down therein. A lawyer must study the law carefully before he proceeds to draft the pleadings or any application. In this case the Supreme Court has exhaustively considered the relevant provisions of Order 23 rule 3 and 3A, CPC as amended by the Civil Procedure Code (Amendment) Act, 1976 and laid down that a party challenging a compromise can file a petition under proviso to rule 3 of Order 23, in which he can question the validity of the compromise. 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. Therefore, the entertaining of the application filed on behalf of the plaintiff and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise, by the trial Court was proper. It has been noted in this case that prior to the amendment in 1976 the suits used to be filed for challenging the validity of such a compromise. By adding the proviso along with an Explanation, the purpose and object of the amendment 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 is now enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. Having introduced the proviso along with the Explanation in rule 3 in order to avoid multiplicity of suits and prolonged litigation, a specific bar is prescribed by rule 3A in respect of institution of a separate suit for setting aside the decree on the basis of compromise. It was further observed that the application for the exercise of power under proviso to rule 3 of Order 23 can be labelled under section 151 of the Code but when by the amending Act specifically such power had been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to rule 3. In Babulal v. Smt. Chaturiya [ 2000 (3) MPLJ 204 ], this Court following the above decision of the Supreme Court has held that an application under section 151, CPC for setting aside the compromise decree on the allegation that the same is unlawful is maintainable. The same view has been taken in Bhagwati Prasad v. Radha Charan. [2001 (3) MPLJ 387]. 5. Therefore, in view of the above legal position, the plaintiffs ought to have filed the application under the proviso to Order 23 rule 3 read with section 151, CPC raising the grounds on which the compromise was said to be unlawful. The same view has been taken in Bhagwati Prasad v. Radha Charan. [2001 (3) MPLJ 387]. 5. Therefore, in view of the above legal position, the plaintiffs ought to have filed the application under the proviso to Order 23 rule 3 read with section 151, CPC raising the grounds on which the compromise was said to be unlawful. The plaintiffs are, therefore, given an opportunity to follow the correct procedure for challenging the compromise decrees. 6. The four revisions are therefore, allowed. The impugned order is set aside. The plaintiffs may submit fresh well drafted proper applications in the two civil suits in light of the above legal position before the District Judge, Raisen and, thereafter, the Court will make the necessary inquiry and decide the objections. The question how the defendants are liable to pay court-fee which was payable by the plaintiffs on their plaints will also be examined afresh.