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2012 DIGILAW 1074 (PAT)

Ashok Kumar Pandey v. Rajesh Kumar Sinha

2012-08-03

JYOTI SARAN

body2012
ORDER 1. Heard learned counsel for the parties. This civil revision application is directed against the order dated 13.7.2011 passed by the learned Sub-Judge-II, Patna in Title Suit No.618 of 2010, whereby the objection raised by the defendant-petitioners as regarding the maintainability of the suit in the light of the provisions of Order 23 rule 3A of the Code of Civil Procedure (hereinafter referred to as the Code) and section 151 thereof, has been rejected and the suit has been held maintainable. With the consent of the parties, the matter has been taken up at the stage of admission, with a view to its final disposal. 2. A family genealogy has been placed on record at Annexure-A to the counter affidavit filed on behalf of the plaintiff-opposite party 1st set and according whereto, the parties are said to be descendants from a common ancestor Shri Thakur Prasad. The said late Thakur Prasad is stated to have married twice. Whereas Pandey Ambika Prasad is stated to be the son from the first wife, the other parties to the proceedings are lineal descendents from the second wife. The property in question is a residential house, namely, Jhunjhun Mahal situate in New Yarpur, P.S. Gardanibagh in the town and district of Patna. 3. Records of the proceedings manifest that the Petitioner no.1, Ashok Kumar Pandey, son of Pandey Ambika Prasad had secured a loan from one Sahay Properties and Investment Private Limited, Muzaffarpur. Upon non-refund of the said loan, the said finance company filed a money suit giving rise to Money Suit No.120 of 1968 and which was decreed against petitioner no.1, Ashok Kumar Pandey. The decree was put to execution giving rise to Execution Case No.66 of 1971 and the property in Jhunjhun Mahal was advertised for auction sale in newspaper on 16.7.1979. Records further manifest that at that stage Pandey Vishwanath Prasad appeared in the execution case and while contesting the right, title and interest of petitioner no.1 in the suit property, satisfied the loan amount by deposit of the decretal amount for protection of the ancestral property in Jhunjhun Mahal. Records further manifest that at that stage Pandey Vishwanath Prasad appeared in the execution case and while contesting the right, title and interest of petitioner no.1 in the suit property, satisfied the loan amount by deposit of the decretal amount for protection of the ancestral property in Jhunjhun Mahal. It is the case of the petitioners that as Pandey Vishwanath Prasad in return of the deposit of the decretal amount got his name mutated in the municipal records a title suit bearing T.S. No.454 of 1983 was filed by the petitioner no.1 while claiming to be the adopted son of PandeyAmbika Prasad, for declaration of title in the suit property, i.e. Jhun Jhun Mahal arraying Pandey Vishwanath Prasad as sole defendant. The suit in question was compromised and a compromise decree was passed on 15.7.2010 by learned Sub-Judge-IX, Patna. The plaintiff-opposite party 1st set upon gathering knowledge of the compromise decree dated 15/23.7.2010 passed in T.S. No.454 of 1983, have filed the title suit in question alleging that the compromise decree had been obtained by fraud and without impleading necessary parties. The suit was registered as Title Suit No.618 of 2010. The petitioners objected to the maintainability of the suit in view of the provisions underlying Order 23 rule 3A of the Code. The objection having been rejected by the impugned order hence this civil revision application. 4. Mr. Shiva Nandan Roy, learned senior counsel appearing for the petitioners has questioned the impugned order in the backdrop of the provisions underlying Order 23 rule 3A of the Code. It is submitted that the provisions of Order 23 rule 3A of the Code are explicit and self eloquent when it prohibits filing of any suit questioning a compromise decree. It is contended that even if the remedy by way of miscellaneous case or an appeal may be available to the party concerned but in view of prohibition under Order 23 rule 3A of the Code a suit is not maintainable and to that extent the order impugned is fit to be set aside. It is contended that whether or not the party complaining to the consent/compromise decree was party to the proceedings is immaterial in view of the tenor of Order 23 rule 3A of the Code which does not create any such classification rather altogether bars a suit questioning a compromise decree. 5. It is contended that whether or not the party complaining to the consent/compromise decree was party to the proceedings is immaterial in view of the tenor of Order 23 rule 3A of the Code which does not create any such classification rather altogether bars a suit questioning a compromise decree. 5. Learned counsel while relying upon a judgment of the Supreme Court reported in AIR 2007 SC 3162 (A.A. Gopalakrishnan vs. Cochin Devaswom Board) more particularly paragraph 11 thereof submits that the proper remedy for the plaintiff-opposite party 1st set would be by way of a writ before the High Court but in any view a suit is not maintainable. It is contended that a compromise can be challenged on two grounds, i.e. the compromise decree having been obtained by committing fraud on court or secondly by committing fraud on other interested parties. It is the contention of the learned senior counsel that in cases where the challenge to a compromise decree is on the ground of committing fraud on court, the proper course would be by way of an application under section 151 of the Code, whereas in the other case, the correct forum would be by way of a miscellaneous case or an appeal or by way of a writ proceedings but in view of the bar under the Code, the suit does not lie. In continuation it is contended that in absence of any remedy available to a stranger to a compromise, an application under section 151 of the Code would be the correct remedy for him. 6. The position has been contested by Mr. Raj Kishore Prasad, learned counsel appearing on behalf of the opposite parties. Mr. Prasad submits that of the various options available to a 3rd party who is directly affected by a judgment and decree recording compromise, the remedy by way of suit proceeding cannot be curtailed. With reference to the provisions of Order 23 rule 3A of the Code it is submitted that the provisions of Order 23 rule 3 and 3A has to be read and interpreted harmoniously and cannot be seen in isolation. In continuation it has been stated that the provisions of Order 23 rule 3 refers to a lawful agreement entered into and agreed upon by the parties to the suit and on the basis whereof the court passes a decree recording such compromise. In continuation it has been stated that the provisions of Order 23 rule 3 refers to a lawful agreement entered into and agreed upon by the parties to the suit and on the basis whereof the court passes a decree recording such compromise. It is contended that the explanation to the provision clarifies that all such compromise which are void or voidable under the Indian Contract Act, 1872 shall not be deemed to be legal under the rule. Learned counsel thus with reference to the family genealogy appended to the counter affidavit submits that the property in question being in the nature of a joint family property, a compromise entered in between two of the co-sharers of which the petitioner no.1 is yet to prove his claim of being an adopted son of Pandey Ambika Prasad, ignoring the rights of the co-sharers, cannot be termed a lawful agreement and a decree passed thereunder cannot bind the other co-sharers. It is submitted that the provisions of rule 3A was inserted by an amendment prohibiting the parties to a compromise decree, from maintaining a suit questioning the compromise decree. While agreeing to the submission of Mr. Roy regarding the remedies available to a party aggrieved by the compromise decree, it is submitted that a 3rd party whose interest stands prejudiced by the compromise decree, also has a remedy by way of a suit in addition to other remedies. Mr. Prasad in support of his submissions has relied upon the following judgments: (i) AIR 1991 Allahabad 75 (Smt. Suraj Kumari vs. District Judge, Mirzapur), paragraphs 22 and 23. (ii) (2009)6 SCC 194 (Sneh Gupta vs. Devi Sarup), paragraph 58. (iii) 2012 (1) PLJR 437 (Satyendra Kumar vs. Most Shakuntala Kumari Verma), paragraph 11. It is submitted that whereas the judgment of the Allahabad High Court in no uncertain terms holds a suit maintainable at the instance of a 3rd party questioning a compromise decree, the judgment rendered by the Supreme Court in the case of Sneh Gupta (supra) at paragraph 58 also supports the position wherein it has been held that a void or voidable decree, passed by a court recording a compromise decree, is required to be set aside by filing a suit. Learned counsel with reference to the judgment of this Court rendered in the case of Satyendra Kumar (supra) submits that the same applies with all force to the issue raised in the present proceedings. 7. Mr. Roy while contesting the judgments relied upon by Mr. Prasad on the issue of forums available to a 3rd party has submitted that the Supreme Court judgment in the case of Sneh Gupta (supra) is a case where a party to a proceedings was not a party to compromise and hence the Court held a suit maintainable at the instance of such party to the suit proceedings. In trying to distinguish the Bench decision of this Court in the case of Satyendra Kumar (supra) it is submitted that the opinion expressed is in context of a judgment reported in Indian appeals, i.e. prior to amendments incorporated in the Code. I have heard learned counsel for the parties and have perused the materials on record. While there is no contest between the parties that a forum is available to a 3rd party who is prejudicially affected by a compromise decree and that such a party can have recourse to either a miscellaneous case in the same court or file an appeal against the compromise decree or even question the same by way of a writ petition, the only contest before this Court is whether such 3rd party stranger who is directly and adversely affected by the compromise decree, can maintain a suit. The statutory provisions of Order 23 rule 3A of the Code read harmoniously and in conjunction with the main provisions of Order 23 rule 3 of the Code leaves no room for confusion that though a remedy of suit is barred for parties to a compromise but the same is indeed maintainable at the instance of a stranger to the compromise. In fact I would not hesitate to say that the amended provisions of rule-3A ought to be read as a second proviso to the provision of Order 23 rule 3. The two provisions are not mutually exclusive rather have to be interpreted, understood and applied in conjunction. 8. The judgment of the Allahabad High Court rendered in case of Smt. Suraj Kumari (supra) is explicit on the issue and I am tempted to reproduce paragraphs 23 and 24 of the said judgment: “23. The two provisions are not mutually exclusive rather have to be interpreted, understood and applied in conjunction. 8. The judgment of the Allahabad High Court rendered in case of Smt. Suraj Kumari (supra) is explicit on the issue and I am tempted to reproduce paragraphs 23 and 24 of the said judgment: “23. The said provision does not bar the present petitioner who was not a party to the said compromise decree to file a suit. As such there is no force in the petitioner’s contention that a suit for setting aside the compromise decree entered into between Sri Nagarmal and Smt. Paradevi was barred by O.23, R.3-A of the Code of Civil Procedure. The suit at the instance of present petitioner for setting aside compromise decree entered into between Smt. Paradevi and Sri Nagarmal is maintainable in law. In support of this contention the petitioner has placed reliance on AIR 1985 Karnataka 270, Smt. Tarabai vs. Krishnaswamy Rao. Since the said provision does not bar the petitioner from filing the suit the decision is of no help to the petitioner.” 24. The first submission made by the petitioner is that even at the instance of a stranger an application for setting a side ex-parte decree or compromise decree is maintainable and the Courts below committed patent illegality in dismissing the petitioner’s application as not maintainable on the ground that proper remedy for the petitioner is by way of filing a regular suit.” The view expressed in paragraph 11 of the bench decision in the case of Satyendra Kumar (supra) puts an end to all speculation and is being reproduced hereinbelow for ready reference: “11. It is true that a person who is not a party to the suit in which the compromise decree has been passed can maintain a suit for seeking the declaration that the said compromise decree will not be binding upon him but after the widening of the power of the Court under Order 23 Rule 3 CPC as noticed earlier it would now be difficult to hold that the court which has passed the compromise decree has no jurisdiction to entertain a petition by the said person seeking recall of the order recording the compromise allegedly obtained by fraud. It has not been disputed that by invoking the inherent jurisdiction of the Court or by filing a suit, in the present facts and circumstances, the same result would ensue. As such it would not be “a correct disposition to permit the expense and delay of separate suit” (See 36 I.A. 197 Privy Council).” In the said case a contention had been advanced by the parties to the compromise while objecting to a proceeding questioning compromise decree, inter alia, on grounds that a suit would lie to set aside the decree and a miscellaneous case was not a proper remedy. Upon examination of the various judgments on the inherent powers of the court and the import of the decree obtained by practising fraud, this Court even while upholding the right of a 3rd party to maintain a miscellaneous case has also upheld his right to maintain a suit questioning the compromise decree. Paragraph 58 of the judgment in Sneh Gupta (supra) again answers the issue posed by Mr. Roy appearing for the petitioners and is reproduced hereinbelow: “58. If the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation (See Mohd Noorul Hoda vs. Bibi Raifunisa, (1996)7 SCC 767 .” There is nothing in the opinion expressed in the judgment of the Supreme Court which would classify that the observations were restricted to a party to suit proceedings, who did not join the compromise. In fact any such interpretation to the observations would entail an unjust classification, when there exists none. On the contrary the distinction sought to be created by Mr. Roy goes against his own submission of a miscellaneous case remedy being available to a party to the proceedings, who denies joining in the compromise. The Supreme Court judgment rendered in the case of A.A. Gopalakrishnan (supra) relied upon by Mr. Roy is in context with the powers of the High Court in interfering with a compromise decree and is not a judgment for the proposition that is posed in the present proceedings. The Supreme Court judgment rendered in the case of A.A. Gopalakrishnan (supra) relied upon by Mr. Roy is in context with the powers of the High Court in interfering with a compromise decree and is not a judgment for the proposition that is posed in the present proceedings. In fact the availability of a remedy by way of writ proceedings would not act an impediment to the right vested in a 3rd party, i.e. a stranger to the compromise, from maintaining suit proceedings. 9. The position of a stranger to a compromise decree is much different from that of a party to a suit proceedings recording a compromise who questions the same on grounds of being fraught by fraud. Whereas the former requires a wider playfield to establish his case, in the case of the latter, the playfield is already existing and within which he has to establish fraud. The scope of the remedy by way of suit proceedings being much wider than a miscellaneous proceedings, an appeal or even a writ proceedings, the legal right vested in a 3rd party-stranger to maintain a suit a proceedings for questioning compromise decree cannot be denied. The position emanating from views expressed by the Courts, on the issue as taken note of hereinabove leads to only one conclusion and that is, that a 3rd party who is a stranger to a compromise decree and is severely prejudiced by the same, has in addition to the remedy by way of a miscellaneous application before the same court or an appeal before the superior court or by invoking writ jurisdiction before the High Court also a vested legal right to maintain suit proceedings. For the reasons aforesaid, no material irregularity nor any jurisdictional error can be found in the order impugned. This civil revision application is accordingly dismissed. As the issue has been in contest since 1983 the trial court would be well advised to consider and dispose of the suit without affording any undue adjournment to the contesting parties.