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2014 DIGILAW 470 (MP)

State of M. P. v. S. Khurseed Ali

2014-04-28

A.K.SHARMA, RAJENDRA MENON

body2014
ORDER 1. This first appeal under section 96 of the Code of Civil Procedure has been filed calling in question the decree passed on the basis of compromise recorded in the proceedings held under Order 23 by 5th Additional District Judge, Bhopal in Regular Civil Suit No.153-A/2009. 2. A preliminary objection is raised by Shri Kochar, learned counsel for the respondent to say that the appeal under section 96 is not maintainable in view of the bar created under section 96(3) and in support of his contention, he invites our attention to the judgment of the Supreme Court in the case of Pushpa Devi Bhagat v. Rajinder Singh and others, (2006) 5 SCC 566 . 3. Records indicate that the respondent/plaintiff had filed a suit for declaration and injunction and in the said suit an application recording compromise under Order 23 rule 3 CPC was filed and accepting the same, compromise decree has been passed by the learned trial Court on 4.8.2010 and challenging this compromise entered into between the parties under Order 23 rule 3 CPC, this appeal has been filed under section 96. 4. Shri Sankalp Kochar, learned counsel for the respondent invites our attention to the provisions of sub-section (3) of section 96 to say that against the compromise decree no appeal is maintainable. 5. The question with regard to maintainability of the appeal, identical in nature has been considered by the Supreme Court in the case of Pushpa Devi Bhagat (supra) and after discussing the provisions of law in para 17 the legal principle has been crystallized in the following manner : “ 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) 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) of rule 1 Order 43. (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) of 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 estopped 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 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 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. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter ( that is on 27.8.2001) filed an appeal and chose not to pursue the application filed before the Court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in section 96(3) of the Code.” (Emphasis supplied) 6. From the aforesaid it is clear that in the light of the bar created under section 96(3), an appeal against the compromise decree was not maintainable and the only remedy available to the appellant is to approach the same Court, which recorded the compromise and passed a decree in terms of the compromise. 7. From the aforesaid it is clear that in the light of the bar created under section 96(3), an appeal against the compromise decree was not maintainable and the only remedy available to the appellant is to approach the same Court, which recorded the compromise and passed a decree in terms of the compromise. 7. In view of the above, the instant appeal is dismissed as not maintainable and the appellant is granted liberty to move the same Court which had passed the decree for compromise in terms of the principles laid down by the Supreme Court as indicated hereinabove. 8. With the aforesaid liberty the appeal stands dismissed as not maintainable.