Kamleshbhai Ambalal Contractor v. Jakshibhai Sajanbhai Bharvad
2009-12-07
K.A.PUJ
body2009
DigiLaw.ai
JUDGMENT : K.A. Puj, J. The appellants - original plaintiffs in the suit have filed this Appeal From Order under Order 43, Rule 1 (u) of the Code of Civil Procedure challenging the order passed by the learned Presiding Officer, Fast Track Court No.5, Ahmedabad (Rural) in Regular Civil Appeal No.34 of 2008 preferred by the original defendants in the suit against the consent decree passed in the suit. 2. This Court has issued notice on 18.05.2009 and in Civil Application, the order was passed directing the parties to maintain statusquo. 3. It is the case of the appellants that they have filed Regular Civil Suit No.516 of 2008 in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural), Ahmedabad on 19.07.2008 seeking declaration against the present respondents - original defendants to the effect that they have no right, title or interest in the suit property. The appellants have also prayed for permanent injunction restraining them from transferring, assigning or selling and/or creating any right, lien, charge or encumbrance of any third party on the suit property. The said suit came to be decided with consent of the parties on the basis of the consent terms filed on 25.07.2008 and consent decree was drawn accordingly. The said consent decree was challenged by the present respondents by filing Regular Civil Appeal No.34 of 2008 in the Court of learned District & Sessions Judge, Ahmedabad (Rural) and the learned Presiding Officer, Fast Track Court No.5, Ahmedabad (Rural) - Mirzapur, Ahmedabad vide his order and judgment dated 24.04.2009 allowed the said appeal and set aside the decree passed by the learned Trial Judge. 4. Mr. S.M. Shah, learned advocate appearing for the appellants has submitted that the present Appeal From Order is filed against the judgment and order of the learned Appellate Court and this appeal is competent in view of the provisions contained in Order 43, Rule 1 (u) which says that an order under Rule 23 or Rule 23A or Order 41 remanding a case, where an appeal would lie from the decree of the Appellate Court, an appeal shall lie before this Court.
The question regarding maintainability of such appeal arose before the Delhi High Court in the case of Rajinder Singh and another v. Smt. Pushpadevi Bhagat and others, AIR 2004 Delhi 228 wherein it is held that Section 104 (1) (i) of the Civil Procedure Code provides an appeal from any order made under the Rules from which an appeal is expressly allowed. An appeal against the order setting aside the decree of the learned Trial Judge and remanding the case for decision on merits falls within category of Appeal From Order as described in Order 43, Rule 1 (u) of the Civil Procedure Code. Hence, such an appeal is maintainable. 5. Mr. Shah has, however, submitted that an appeal filed by the present respondents before the Appellate Court wherein the impugned order is passed and challenged in this Appeal From Order, is not competent in view of the fact that the appeal is filed against the consent decree and such an appeal is barred by the provisions of Section 96 (3) of the Code of Civil Procedure. The present respondents in their appeal memo of the appeal preferred to the Appellate Court had clearly stated about the sale of the suit land to one Mr. Rajendra N. Patel on 16.07.2008 and hence, even on this ground, they cannot prefer appeal to the Appellate Court against the judgment and decree of the Trial Court. Hence, their appeal is liable to be dismissed. The present respondents have no right, title or interest in the suit land. They have no locus standi to prefer appeal to the Appellate Court against the judgment and decree passed by the learned Trial Judge and as such, the appeal filed by them should have been dismissed by the Appellate Court. The Appellate Court should have dismissed the appeal keeping in mind the provisions contained in the Civil Procedure Code. He has further submitted that on service of summons of the suit, the present respondents through their Power of Attorney have appeared in the suit and filed Vakalatnama at Exh.12 and consent purshish was thereafter filed before the Trial Court and on that consent purshish, the consent decree came to be passed. He has, therefore, submitted that Regular Civil Appeal cannot be filed by the present respondents before the Appellate Court in view of the provisions contained in Section 96 (3) of the Civil Procedure Code. 6. Mr.
He has, therefore, submitted that Regular Civil Appeal cannot be filed by the present respondents before the Appellate Court in view of the provisions contained in Section 96 (3) of the Civil Procedure Code. 6. Mr. Shah has further submitted that the present respondents on service of summons in the suit had appeared with their advocate and they preferred application Exh.13 for filing written statement and advocate has filed consent purshish in the suit duly signed by him and consent decree is passed by the Trial Court by recording presence of the parties and their advocates. Hence, the appeal filed against such consent decree is barred by Section 96 (3) of the Code of Civil Procedure. The judgment of the Appellate Court is patently illegal, erroneous and unsustainable especially when no documentary evidence is on record to show that the Power of Attorney given by the present respondents was cancelled. No documentary evidence can be produced in appeal and the same is barred by provisions of Order 41, Rule 27 (1) of the Code of Civil Procedure and none of the new documentary evidence or other evidence can be considered in appeal and still the Appellate Court has considered the new evidence tendered in appeal and that has vitiated the impugned judgment and order. He has, therefore, submitted that the present appeal requires to be allowed and the order passed by the learned Appellate Court against the consent decree deserves to be quashed and set aside. 7. In support of his submissions that appeal is not competent against the consent decree, Mr. Shah relied on the decision of Bombay High Court in the case of Chhipa Allarakha Isakji v. Bai Sona, AIR 1929 Bombay 68 wherein it is held that under Workmen's Compensation Act, Commissioner has power in contested proceedings before him to pass any order or decree by consent of parties, and appeal from such decree or order does not lie to the High Court. 8. Mr.
8. Mr. Shah further relied on the decision of the Privy Council in the case of Zahirul Said Alvi v. Lachhmi Narayan, AIR 1932 Privy Council 251 wherein it is held that as the Court of the Judicial Commissioner has declared that it proceeded entirely upon the consent of parties in making the decree appealed from their Lordships have not thought it necessary to consider the other statements in its report as to the sufficiency or otherwise of that consent. Upon that declaration alone, they must deal with the appeal on the footing that it is entirely incompetent and they must humbly advise His Majesty that it be dismissed. 9. Mr. Shah further relied upon the decision of the Apex Court in the case of Pushpa Devi Bhagat (D) by L.R. v. Rajinder Singh & Others, AIR 2006 SC 2628 wherein it is held that the position that emerges from the amended provisions of Order 23 can be summed up thus : (a) No appeal is maintainable against the consent decree having regard to the specific bar contained in Section 96 (3) of the Code of Civil Procedure; (b) 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; (c) No independent suit can be filed for challenging a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A. (d) 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. This is so because consent decree, is nothing but contract between parties super imposed with the seal of the approval of the Court.
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 so because consent decree, is nothing but contract between parties super imposed with the seal of the approval of the Court. The validity of a consent decree depends fully on the validity of the agreement or compromise on which it is made. 10. Mr. Shah in support of his submission that the suit property was sold by the present respondents to one Mr. Rajendra Patel and hence, they have no right, title or interest in the suit property and they cannot file the appeal before the Appellate Court, refers to and relied upon the provisions contained in Order 22, Rule 10 & 11 of the Code of Civil Procedure. Rule 10 says that in other cases of an assignment, creation or deviation of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. Rule 11 says that this provision equally applies to appellants. He has also relied on the decision of this Court in the case of Vallabhdas Nandlal Panchamiya v. Mansukhlal Bhagwanji and another, reported in (1974) 15 GLR 217. 11. Mr. Shah has further submitted that agreement to sell was entered in favour of the appellants on 12.03.2008 and entire sale consideration was paid by the appellants. Pursuant to the agreement to sale, final sale deed was executed on 25.06.2008. The alleged sale deed executed in favour of Mr. Rajendra Patel was executed on 15.07.1008. However, before that, the property was already sold to the appellants and there was no surviving title in favour of the respondents. He has, therefore, submitted that the transaction entered into with the appellants was first in point of time and it was effected by the subsequent transaction allegedly entered into by the respondents with one Mr. Rajendrabhai. 12. Mr. Shah has further submitted that the Appellate Court considered the Caveat filed by the said Rajendrabhai and on that basis, it is held that without hearing the Caveator, decree was passed. He has, however, submitted that the Caveat was filed subsequent to the filing of the suit. The Caveator was not a party in the suit.
Rajendrabhai. 12. Mr. Shah has further submitted that the Appellate Court considered the Caveat filed by the said Rajendrabhai and on that basis, it is held that without hearing the Caveator, decree was passed. He has, however, submitted that the Caveat was filed subsequent to the filing of the suit. The Caveator was not a party in the suit. Moreover, the filing of Caveat was not brought to the notice of the Court nor the copy of the said caveat was served on the appellants. Hence, no fault can be found with the Trial Court if the cognizance of the said caveat was not taken by the Trial Court. 13. Considering all the above aspects of the matter, Mr. Shah has strongly urged that the impugned order is contrary to the provisions of Civil Procedure Code and against the binding decisions of the Apex Court and hence, the same deserves to be quashed and set aside. 14. Ms. Megha Jani, learned advocate appearing for the respondents - original plaintiffs, on the other hand, has submitted that since the decree passed by the Trial Court is a collusive decree and the appellants as well as the alleged Power of Attorney Holder of the respondents in collusion with each other have obtained the said decree by filing compromise purshish about which the respondents were not aware. She has further submitted that the very fact that the summons of the suit is served on the Power of Attorney Holder and not on the respondents is indicative of the fact that a fraud was committed by the appellants and the Power of Attorney Holder. The suit was filed on 19.07.2008 wherein averments were made that the defendants are trying to sell away the property or to extract the money from the plaintiffs and they are giving threats to the plaintiffs, still on 25.07.2008, the compromise purshish was filed and based on that compromise purshish, consent decree was passed. She has, therefore, submitted that the decree passed by the Trial Court is based on fraud and the said consent decree is not binding on the respondents. Precisely for this reason, the appeal was filed by the respondents before the Appellate Court. This appeal is competent in view of the provisions contained in Order 43, Rule 1A of the Civil Procedure Code.
Precisely for this reason, the appeal was filed by the respondents before the Appellate Court. This appeal is competent in view of the provisions contained in Order 43, Rule 1A of the Civil Procedure Code. Order 43, Rule 1A deals with right to challenge nonappealable orders in appeal against decrees. Subrule (2) of Rule 1A of Order 43 says that in an appeal against the decree passed in a suit after recording the compromise or refusing to record a 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. She has, therefore, submitted that appeal filed by the respondents before the Appellate Court is competent in view of the provisions contained in Subrule (2) of Order 43, Rule 1A and bar envisaged under Section 96 (3) of the Civil Procedure Code would not come in the way of the respondents. 15. Ms. Jani has further submitted that decision relied on by the appellants in the case of Pushpa Devi Bhagat (Supra) lays down four propositions. However, provisions contained in Order 43, Rule 1A was not considered by the Apex Court. This provision was considered by the Apex Court in its earlier judgment in the case of Banwari Lal v. Smt. Chando Devi (through L.R.) and another, AIR 1993 SC 1139 wherein it is held 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 the decree on the ground that the compromise should not have been recorded. When Section 96 (3) bars an appeal against decree passed with the consent of parties; it implies that such 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 the appeal under Order 43, Rule 1(m). If the order regarding compromise was set aside, there was no necessity or occasion to file appeal against the decree.
One such remedy available was by filing the appeal under Order 43, Rule 1(m). If the order regarding compromise was set aside, there was no necessity or occasion to file appeal against the decree. Similarly, a suit used to be filed for setting aside such decree on the ground that the decree is passed on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such, a right has been given under Rule 1A (2) of Order 43 to a party who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96 (3) of the Code shall not be bar to such an appeal because Section 96 (3) is applicable to cases where the factum of compromise or agreement is not in dispute. (Emphasis supplied). 16. Ms. Jani further relied on the decision of the Apex Court in the case of Kishun @ Ram Kushun (Dead) through LRS. v. Behari (Dead) by LRS., 2005 (6) SCC 300 wherein it is held that after the omission of Rule 1(m) of Order 43 Civil Procedure Code w.e.f. 01.02.1977, no appeal is provided against an order rejecting or accepting a compromise after an enquiry under the Proviso to Order 23 Rule 3, either by Section 104 or by Order 43, Rule 1, C.P.C. Only when the acceptance of the compromise receives the imprimatur of the Court and it becomes a decree, or the Court proceeds to pass a decree on merits rejecting the compromise set up, it becomes appealable, unless of course, the appeal is barred by Section 96 (3) CPC. When there was a contest on the question whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, could not be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96 (3) CPC could not have application. An appeal and a second appeal with its limitations would be available to the party feeling aggrieved by the decree based on such a disputed compromise or on a rejection of the compromise set up. 17. Ms.
Therefore, the bar under Section 96 (3) CPC could not have application. An appeal and a second appeal with its limitations would be available to the party feeling aggrieved by the decree based on such a disputed compromise or on a rejection of the compromise set up. 17. Ms. Jani further relied on the decision of the Bombay High Court in the case of Deorao v. Devkinandan Bhojraj Chandak and another, AIR 1984 Bombay 474, wherein it is held that where a decree had been passed in a suit on the basis of a compromise alleged to have been arrived at between the parties, an appeal against the decree disputing such compromise is maintainable as an appeal against decree under Section 96 (1) and would not be hit by Section 96 (3). The Bombay High Court has, however, taken the view that such an appeal is not maintainable under O.43, Rule 1A(2). While taking this view, the Court held that a plain reading of subrule (2) of R.1A would indicate that it postulates an appeal against a decree for its operation. In other words, subrule (2) of R.1A of O.XLIII would come into operation only in an appeal against a decree passed in a suit after recording or refusing to record a compromise. This subrule only enables the appellant to contest the decree on the ground that a compromise should, or should not, have been recorded. The language of R.1A and for that matter of subrule (2) of R.1A, contrasted with the opening words of R.1 of O.XLIII, clearly indicates that R.1A does not contemplate conferring a right of appeal as in done under Rule 1 of O. XLIII. R. 1A is merely an enabling provision entitling the appellant in an appeal against a decree to dispute or to challenge the orders passed in the suit which are not otherwise appealable under R.1 of O.XLIII. Therefore, it could not be contended that Order 43, Rule 1A (2) confers a right of appeal on a party which is dissatisfied with the order passed by the Trial Court recording or refusing to record a compromise. Subs. (3) of Section 96 would only debar those appeals which are filed against a decree in which the appellant does not dispute the recording of a compromise.
Subs. (3) of Section 96 would only debar those appeals which are filed against a decree in which the appellant does not dispute the recording of a compromise. In other words, if the appellant files the appeal accepting the decree as having been passed with the consent of parties, then subsec. (3) of Section 96 would debar such an appeal. However, this subsection would not operate. If the appellant disputes the very fact of the decree having been passed with the consent of the parties. If such a dispute is raised in the appeal itself, then it would not be hit by the provisions of Subsec. (3) of Section 96 of the Code and in that case, it would not be tenable as an appeal against a decree as provided by Section 96 (1) of the Code. In the circumstances of the case, though the appellant while filing appeal had styled it as an appeal made under Order 43, Rule 1A in the cause title, the appellant had paid the courtfee on the basis of its being a regular appeal and not a miscellaneous appeal and hence, there was no difficulty on the part of the appellate Court to have entertained the appeal as made under Section 96 (1). 18. In view of the above legal position, Ms. Jani has strongly urged that the appeal filed by the respondents before the Appellate Court is competent and the said appeal is rightly entertained and allowed by the Appellate Court and remanded the matter to the Trial Court with a direction to decide the suit on merits. 19. So far as the second limb of argument of Mr. Shah that since the respondents have sold away the property and they have no right, title or interest in the suit property and hence, they could not file the appeal is concerned, Ms. Jani has submitted that the decree is passed against the respondents and hence, they are certainly aggrieved by the said decree. Moreover, they have sold away the property to one Mr. Rajendrabhai and in the document itself, there was an obligation on the part of the respondents to pass on clear and marketable title to the said Mr. Rajendrabhai. It is also clearly stated in the document that if there is any previous claim, then it is the responsibility of the respondents to make good those claims.
Rajendrabhai and in the document itself, there was an obligation on the part of the respondents to pass on clear and marketable title to the said Mr. Rajendrabhai. It is also clearly stated in the document that if there is any previous claim, then it is the responsibility of the respondents to make good those claims. In this view of the matter, if the respondents challenge the said decree before the Appellate Court, it cannot be said that they are not aggrieved party or that they have no locus standi. As a matter of fact, though the respondents were joined as parties - defendants in the suit, summons was never served on them. On the contrary, summons was served on their alleged Power of Attorney and the compromise purshish was filed by him before the Trial Court and acting on that compromise purshish, the consent decree was passed. She has, therefore, submitted that if such a consent decree based on fraud is passed by the Trial Court, the respondents being aggrieved parties, can certainly challenge the said decree before the Appellate Court. She has, therefore, submitted that even on this ground, the appeal filed by the appellants deserve to be dismissed. 20. Ms. Jani has further submitted that the learned Trial Judge has made undue haste in passing the decree without verifying as to whether the summons of the suit is served on the defendants or not. Service on summons to the Power of Attorney in absence of Deed of Power of Attorney on record is no service in the eye of law. It is too much to presume for the Trial Court to consider the said service as a valid service. Based on such service of summons, if decree is passed, the said decree cannot be considered to be a decree passed after valid service of the summons. Within a short period of one week, the suit is decreed in favour of the appellants and that too, on the basis of suit claim having been admitted by the Power of Attorney of the defendants. The said decree can certainly be considered as decree passed in connivance and hence, the appeal filed against such a decree is competent and the learned Trial Judge has rightly entertained and set aside the decree for deciding it a fresh on merits. 21. Based on the above submissions, Ms.
The said decree can certainly be considered as decree passed in connivance and hence, the appeal filed against such a decree is competent and the learned Trial Judge has rightly entertained and set aside the decree for deciding it a fresh on merits. 21. Based on the above submissions, Ms. Jani has submitted that the appeal deserves to be dismissed with heavy compensatory costs as the appellants have committed fraud with the Court and the legal process of the Court has been misused by them. Having heard the Learned Counsel appearing for the parties and having gone through the impugned order and judgment passed by the Appellate Court in light of the documentary evidence and record and also in light of the statutory provisions contained in Civil Procedure Code as well as the decisions cited before the court on the subject involved in the present appeal from order, the court is of the view that the Learned Appellate Judge was right in setting aside the decree passed by the Trial Court on the basis of alleged compromise purshish and in remanding the matter back to the Trial Court for deciding afresh. Learned Counsel Mr. Shah appearing for the appellants has challenged the order of the Appellate Court mainly on two grounds : i. Appeal filed by the represent respondents/Original Defendants before the Appellate Court against the consent decree is incompetent. ii. The present respondents the original defendants have no locusstandi in filing the appeal since they have sold away the suit property to one Mr. Rajendrabhai before filing appeal before the Appellate Court. However, on careful examination of both these grounds in light of the statutory provisions and also applying settled principles of law propounded by the courts, the Court finds that none of these grounds are tenable and impugned order and judgment of the Appellate Court calls for no interference by this Court. 22. It is true that appeal against consent decree is barred under the provisions contained in Section 96(3) of Civil Procedure Code. It is also true that by virtue of deletion of Clause (m) of Rule 1 of Order 43 of Civil Procedure Code, even appeal from order cannot lie against the consent decree.
22. It is true that appeal against consent decree is barred under the provisions contained in Section 96(3) of Civil Procedure Code. It is also true that by virtue of deletion of Clause (m) of Rule 1 of Order 43 of Civil Procedure Code, even appeal from order cannot lie against the consent decree. It is also true that by virtue of deletion Rule 3A of Order 23 of Civil Procedure Code, a suit cannot be filed prying for quashing and setting aside of an order and decree recording the compromise. It is however, to be kept in mind that the very amendment brought on the statute book deleting Clause (m) of Rule 1 of Order 43 and Rule 3 of Order 23, inserted Rule 1A of Order 43, which deals with right to challenge non-appealable order in appeal against decrees. Sub Rule 2 of Rule A of Order 43 of Civil Procedure Code specifically makes a provision that in appeal against decree passed in a suit after recording compromise or refuse to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise in the suit should not have been recorded. In the present case, Learned Trial Judge has recorded the compromise on the basis of the compromise purshis filed by the power of attorney holder of the present respondents. The present respondents are of the view that the such compromise should not have recorded by the Learned Trial Judge. They have therefore, approached to the appellate court challenging the said compromise decree. For abundant portion, they have also paid requisite court fees in respect of that appeal and hence, the said appeal was treated as Regular Appeal and not Miscellaneous Civil Appeal. Their appeal is therefore, clearly maintainable under the provision of Order 43 Rule 1A read with Section 96(1) of the Civil Procedure Code. The decision of the Apex Court as relied on by Mr. Shah in the case of Pushpa Devi Bhagat (D) by LR v. Rajinder Singh & Others (Supra), would not come in the way of the present respondents, as in that case, the provisions contained in Order 43 Rule 1A were not pointed out to the Court.
The decision of the Apex Court as relied on by Mr. Shah in the case of Pushpa Devi Bhagat (D) by LR v. Rajinder Singh & Others (Supra), would not come in the way of the present respondents, as in that case, the provisions contained in Order 43 Rule 1A were not pointed out to the Court. It is true that one of the propositions laid down by the Apex Court in that decision is that the consent decree operates as a 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. Based on this proposition, Mr. Shah has contended that the only remedy available to the present respondents is to approach the same court, which has passed the consent decree. Since the provision contained in Order 43 Rule 1A was not brought to the notice of the Apex Court, it cannot be said that the only remedy available to the present respondents is to approach the very same court, which has passed the consent decree. As a matter of fact, the Apex Court had an occasion to consider the provision contained in Subrule 2 of Rule 1A of Order 43 in the case of Banwari Lal v. Chando Devi (through L.R.) and another (Supra) and it has been held therein that Rule 1A (2) has been introduced saying that against a decree passed in a suit after recording the compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. The Court further observed in that case that when Section 96(3) bars an appeal against the decree passed with the consent of the parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. An appeal under Order 43 Rule 1A(2) against the consent decree is one such remedy, which is available to the parties. Apex Court has also made it clear in this decision that the right has been given under Rule 1A(2) of Order 43 to a party who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree.
Apex Court has also made it clear in this decision that the right has been given under Rule 1A(2) of Order 43 to a party who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code shall not be bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute. Even the Bombay High Court in the case of Deorao v. Devkinandan Bhojraj Chandak and another (Supra), has taken the view that though an appeal against the compromise decree is not maintainable under Order 43 Rule 1A(2), the appellate court can certainly entertain such an appeal as filed under Section 96(1) of Civil Procedure Code, if the appellant had paid the court fees on the basis of treating the same as Regular Appeal. Taking any view of the matter, an appeal filed by the present respondents before the Appellate Court is held to be maintainable and all contentions raised by Mr. Shah in this regard are therefore, not accepted. 23. So far as the second contention of Mr. Shah that the present respondents have lost their right or interest in the suit property once they have sold it away to Mr. Rajendrabhai and hence, they have no locusstandi in the matter, is concerned, the same is not found favourable with the Court. The suit is filed against present respondents. They are defendants in the suit and decree is passed against them. They are not parties to the compromise purshish.. The compromise purshish is filed by their power of attorney holder on their behalf but without their knowledge. They are really aggrieved by the said consent decree especially when such compromise purshish is filed and decree is passed on such compromise purshish within one week from the date of filing of the suit and without serving any summons on them. Since they are aggrieved parties, they have every right to file an appeal before the appellate court.
They are really aggrieved by the said consent decree especially when such compromise purshish is filed and decree is passed on such compromise purshish within one week from the date of filing of the suit and without serving any summons on them. Since they are aggrieved parties, they have every right to file an appeal before the appellate court. Even otherwise, as per the terms and conditions of the sale deed, they are under an obligation to pass on a clear and marketable title to the purchaser and if there is any previous claim in respect of the suit property, which is sold by them to the purchaser, they are under an obligation to deal with the said claim and hand over the possession of the said property without any charge and encumbrance. The court is therefore, of the opinion that even on this ground, the appellants do not succeed. 24. It prima-facie appears to the court that there is a collusion between the appellants and the power of attorney holder of the present respondents. Looking to such collusion or connivance, the consent decree should not have been passed by the Trial Court. The Court is at pains to point out that the Trial Court should not have made undue haste in passing the consent decree. It is unheard of the fact that the Trial Court, at the very first stage issues summons of the suit on the power of attorney holder of the defendants. It is also unheard of the fact that despite their being specific averments in the plaint of the suit that the defendants are trying to dispose of the suit property, the Trial Court accepted the compromise purshish filed by the power of attorney holder of the defendants withing one week from the date of filing of the suit and passed decree on the basis of such compromise purshish without even bringing to the notice of the defendants or without making any further inquiry in the matter. This approach on the part of the Trial Court is unpardonable and it certainly raises certain issues, which can be gone into by this Court on its administrative side. The platform of the judicial forum could not be utilised by any party so as to derive an undue advantage at the detriment of any other party.
This approach on the part of the Trial Court is unpardonable and it certainly raises certain issues, which can be gone into by this Court on its administrative side. The platform of the judicial forum could not be utilised by any party so as to derive an undue advantage at the detriment of any other party. It appears to the Court that the appellants, in connivance with the power of attorney holder of the present respondents used the platform of the Trial Court in such a manner that the present respondents/original defendants are put into very precarious position and they were constrained to be dragged into unnecessary litigation, under which, they have no other alternative but to file an appeal before the Appellate Court challenging the consent decree. The appellate court in the facts and circumstances of the case has rendered real justice in the matter by setting aside the said consent decree and directing the Trial Court to decide the suit afresh after making necessary inquiry in the matter. 25. In the result, this Appeal From Order fails with cost of Rs. 10,000/, which the appellants shall pay to the respondents within one month from today. 26. Since the Appeal is dismissed, Civil Application does not survive and it is accordingly rejected. Appeal dismissed.