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2006 DIGILAW 868 (KAR)

R. NARAYANASWAMYREDDY v. R. LAKSHMINARAYANA REDDY

2006-10-30

V.JAGANNATHAN

body2006
JUDGMENT With the consent of the parties, this matter is taken up for final disposal though it is listed for orders. 2. The appellant herein is the plaintiff in O.S. No. 5999 of 2005 on the file of the learned Additional Civil Judge, Bangalore, and I.A. No. 1 filed by him in the said suit praying for an injunction against the respondents herein came to be rejected by the Trial Court giving rise to this appeal. 3. I have heard the submissions made by Sri S.K V. Chalapathi, the learned Counsel for the appellant, Sri Udaya Holla, learned Senior Counsel for respondents 1 and 2 and Sri Suraj Govinda Raj, learned Counsel for respondent 4. The submission of the appellant's Counsel is that the appellant filed the present suit for partition of the suit schedule property measuring 1 acre 3 guntas in Sy. No. 29/2A of Jaraganahalli Village and it is his case that he and respondents 1 and 2, being the sons of late Ramaiah Reddy, he is entitled to his share in the suit schedule property. Therefore, he filed the said suit and prayed for temporary injunction against the respondents from putting up constructions in the suit schedule property. 4. Sri S.K V. Chalapathi, learned Counsel for the appellant, referring to the impugned order passed by the Trial Court, submitted that O.S. No. 18 of 1988 filed by one V. Manjunatha Reddy and others against the appellant herein and his brothers came to be deemed in terms of the compromise filed by the parties, and following the appeal preferred by the four sisters of the appellant herein, the said compromise decree was set aside by this Court and aggrieved by the aforesaid order of this Court, the present appellant and his brothers preferred civil appeals before the Hon'ble Supreme Court in C.A. Nos. 5207, 5208, 5209 and 3212 of 1998 and during the pendency of those appeals before the Apex Court, a compromise petition was filed and in accordance with the said compromise petition, all the civil appeals came to be disposed of. As per the compromise that was entered into between the parties before the Apex Court, out of 2 acres 39 guntas in Sy. No. 29/2A, the appellant herein got 3 guntas, respondent 1 got 2 acres 25 guntas and respondent 3 got 11 guntas. 5. As per the compromise that was entered into between the parties before the Apex Court, out of 2 acres 39 guntas in Sy. No. 29/2A, the appellant herein got 3 guntas, respondent 1 got 2 acres 25 guntas and respondent 3 got 11 guntas. 5. Subsequent to all these events, following the Surveyor's report, it was revealed that Sy. No. 29/2A comprised of not 2 acres 39 guntas, but it comprised of 4 acres 2 guntas. Following this, the appellant herein was constrained to file the present suit seeking for his share in the excess land in Sy. No. 29/2A. I.A. No. 1 was filed seeking injunction against the respondents from putting up construction in the excess land. 6. Referring to the above events, the learned Counsel for the appellant submitted that insofar as the excess land of 1 acre 3 guntas in Sy. No. 29/2A is concerned, the said excess land of 1 acre 3 guntas was never the subject-matter of the suit filed in O.S. No. 18 of 1988 nor did it figure in the compromise petition that was entered into between the parties leading to the decree being passed in terms of the compromise petition by the Apex Court. Therefore, the Trial Court ought to have appreciated the facts in the above lines and ought to have granted an injunction as prayed for by the appellant. Therefore, the learned Counsel submitted that as the suit is pending, the respondents be restrained from alienating 1 acre of land and as the apartments have been put up by the developer concerned, at least, the number apartments which covered an area of 1 acre of land should not be allowed to be sold by the owner. 7. In support of the above submissions, the learned Counsel for the appellant placed reliance on the decisions in Life Insurance Corporation v Bangalore Life Insurance Corporation Employees' Housing Co-operative Society Limited1; Gujarat Bottling Company Limited and Others v Coca Cola Company and Others2; Bina Murlidhar Hemdev and Others v Kanhaiyalal Lokram Hemdev and Others3 and Gangubai Bablya Chaudhary v Sitaram Bhalchandra Sukhtankar and Others4. 8. 8. On the other hand, the learned Senior Counsel Sri Udaya Holla for respondents 1 and 2 submitted that the order of the Trial Court does not call for interference inasmuch as the very suit itself is not maintainable having regard to the Order 23, Rule 3-A which bars filing of a suit to set aside a compromise decree on the ground that the compromise was not lawful and in view of the bar contained in Rule 3-A, the only remedy available to the appellant, who is a party to the consent decree, is to approach the very Court which recorded the compromise and passed a decree in terms of it. Therefore, by virtue of the above provision obtaining in the CPC, the suit itself is not maintainable and obviously the question of granting any interim injunction does not arise. 9. Apart from the above submission, it was also contended by the learned Senior Counsel Sri Udaya Holla that the appellant is actually questioning the very compromise itself which was entered into between the parties and on the basis of which the Apex Court also passed the decree and, therefore, if at all the appellant is aggrieved, the only remedy is to approach the Apex Court and not the Trial Court. In this connection, my attention was drawn to the plaint averments made at paragraph 13. In support of his submission, the learned Counsel placed reliance on the decisions of the Apex Court in Pushpa Devi Bhagat (dead) by L.R. v Rajinder Singh and Others5 and Cotton Corporation of India Limited v United Industrial Bank Limited and Others6. 10. The learned Counsel for respondent 4, in effect, adopted the arguments of the learned Senior Counsel Sri Udaya Holla, but supplemented the same by contending that so far as I.A. No. 1 filed by the appellant is concerned, no relief was claimed against respondent 4 and I.A. No.1 filed by the appellant was also not pressed further before this Court. The further submission is that the relief sought before this Court in I.A. No.2 was not sought before the Trial Court and, therefore, it is not permissible for the appellant to enlarge the scope of the appeal by seeking a relief which was not even claimed before the Trial Court. 11. The further submission is that the relief sought before this Court in I.A. No.2 was not sought before the Trial Court and, therefore, it is not permissible for the appellant to enlarge the scope of the appeal by seeking a relief which was not even claimed before the Trial Court. 11. Having regard to the submissions made as aforesaid and after carefully going through the decisions referred to by the respective Counsel, the question for consideration is whether the appellant has made out a case for this Court to interfere with the order passed by the Trial Court on I.A. No. 1. 12. It is not in dispute between the parties that O.S. No. 18 of 1988 ultimately culminated in a compromise being entered into between the parties leading to a compromise decree being passed by the Hon'ble Supreme Court in the civil appeals first mentioned above. A perusal of the compromise petition that is filed before the Apex Court goes to indicate that one of the items that was the subject-matter of the compromise pertained to Sy. No. 29/2A. The description of the said item No.1 in the compromise petition is as under: "Item No.1 Entire Sy. No. 29/2A situated at Jaraganahalli Village, Bangalore South Taluk, measuring 2 acres 25 guntas which is delineated in letters XYJZ sketched in the annexed plan I except two sites which are measuring 94 x 35 feet 3 guntas and 126 feet x 105 feet 12.14 guntas which are delineated as FHJI and GIJK which are allotted to Narayana Swamy Reddy and Appanna Reddy respectively and bounded as follows.- East by : 20 feet road West by: Sy. No. 33/3 property of Lakshminarayana Road and Venkatachala Reddy North by : Sy. No. 29/1 South by: 30 feet common road". 13. It is, therefore, clear from the above description that what was the subject-matter of compromise was the entire Sy. No. 29/2A. No. 33/3 property of Lakshminarayana Road and Venkatachala Reddy North by : Sy. No. 29/1 South by: 30 feet common road". 13. It is, therefore, clear from the above description that what was the subject-matter of compromise was the entire Sy. No. 29/2A. Therefore, when the entire survey number is covered under the compromise petition filed before the Apex Court and if, subsequent to the Surveyor's report as contended by the appellant, the extent of land is shown to be 4 acres and 2 guntas and not 2 acres 39 guntas, the remedy for seeking necessary clarification lies in the very Court where the compromise petition was filed and the decree was passed in terms of it and it is not open to the appellant to question the same before the Trial Court. Therefore, the learned Trial Judge, in my opinion, has rightly observed in paragraphs 39,40 and 41 of the impugned order thus: "39. If the Court does not have inherent jurisdiction to try and entertain the suit then decree is nullity and can be challenged in collateral proceedings or wherever such decree is set up. Hence, against such decree there I no need to file an appeal and to get it set aside. In Kiran Singh and Others v Chaman Paswan and Others, AIR 1954 SC 340 , this was the rule laid down. 40. It is not the case of the plaintiff that Court which passed a decree lacked inherent jurisdiction. Hence, the obviously plaintiff cannot rely his case on this ruling. To Civil Procedure Code under 1976 Amendment, Rules 3-A and 3-B were added which read as under: "Order 23, Rule 3-A. No suit shall lie to set aside a decree on the ground that compromise on which decree is based was not lawful”. Bare reading of this provision clarifies that a compromise decree can be challenged by party to it by filing proceedings in that very case alone and it is not open for the party to file a suit. 41. Secondly, when Hon'ble Supreme Court has affirmed compromise petition and passed decree thereupon, it is not open for plaintiff to challenge the same before this Court. Regarding other aspects of the matter elaborate and detailed submissions were made by both parties. 41. Secondly, when Hon'ble Supreme Court has affirmed compromise petition and passed decree thereupon, it is not open for plaintiff to challenge the same before this Court. Regarding other aspects of the matter elaborate and detailed submissions were made by both parties. I am of the opinion, that these points which have been urged on other aspects of the matter need no consideration at this juncture. Hence, I refrain from opinionating on those aspects and hold that prima facily the suit filed in present farm itself is not maintainable. As such, I answer point for consideration in negative against plaintiff.... ". 14. In the light of the above observations of the Trial Court, I am of the considered opinion that the decisions referred to by the learned Counsel for the appellant are not applicable insofar as the facts and circumstances of the case on hand are concerned. At the same time, the law laid down by the Apex Court in the case of Pushpa Devi Bhagat, squarely applies to the instant case. The observations of the Apex Court in the said decision are as under: "The position that emerges from the amended provisions of Order 23, can be summed up thus: (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) of the CPC; (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 3-A; (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. 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 no 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". 15. For the foregoing reasons, the appeal lacks merit and it is accordingly dismissed. No order as to costs.