ORDER : 1. Present applicant, who is the original defendant No.3 before the Court below in Regular Civil Suit No. 72 of 1997, has challenged the order dated 24.7.2019 passed below Exh. 292 by the learned 3rd Additional Senior Civil Judge, Gandhinagar in Regular Civil Suit No. 72 of 1997. 2. The short facts leading to the present case are as under:- 3. The original plaintiffs who are the respondent No.1 to 4 herein filed Regular Civil Suit No. 72 of 1997 before the Court of learned 3rd Additional Sr. Civil Judge, Gandhinagar against the present applicant and respondent No. 4 to 15. Initially the said suit was filed only against three defendants namely defendant No.1 - Anilbhai S.Gandhi 2. Amijara Farms Pvt. Ltd. and present applicant, subsequently, other defendants were added by the applicants. In the suit filed by the original plaintiffs, prayer was made for setting aside the consent decree passed in Regular Civil Suit No. 89 of 1996. According to the plaintiffs in the suit, consent decree was obtained by the original defendant No.3 illegally and by fraud as well as misrepresentation. In the title of the suit, the said suit was for declaration and mandatory injunction. Subsequently in the suit claim was enhanced to Rs.1260/. The said suit was in respect of the land bearing block No. 112 (paiki) admeasuring 26 acres and 2 Gunthas which was hereinafter referred to as “the suit land”. The said suit was filed by the original plaintiffs to set aside the consent decree passed by the learned Civil Judge (JD), Gandhinagar in Regular Civil Suit No. 89 of 1996. The parties to Regular Civil Suit No. 89 of 1996 were impleaded as the defendants in Regular Civil Suit No. 72 of 1997. Present applicant preferred an application vide Exh. 292 under Order VII Rule 11 of CPC contending that the suit is barred under Order XXIII Rule 3A of the CPC. After hearing the parties, learned trial Judge was pleased to reject the said application [ Exh. 292] by the impugned judgement and order dated 24.7.2019. Present applicant, being aggrieved by the judgement and order dated 24th July, 2019, has approached this Court, challenging the legality and validity of the said judgement and order. 4. Heard Mr. Mehul Shah, learned Sr. Counsel appearing for Mr. A.A.Purohit, learned advocate for the applicant. 292] by the impugned judgement and order dated 24.7.2019. Present applicant, being aggrieved by the judgement and order dated 24th July, 2019, has approached this Court, challenging the legality and validity of the said judgement and order. 4. Heard Mr. Mehul Shah, learned Sr. Counsel appearing for Mr. A.A.Purohit, learned advocate for the applicant. As per cause title, however, notice was duly served by direct service to respondent No. 1,2,4,5.1,5.2,5.3,5.4,5.5,5.6,6, 15, nobody was appeared to contest this application and Mr. J.C.Vyas, learned advocate is appearing for the respondent Nos. 7 to 14. 5. Learned advocate appearing for the applicant has submitted in his arguments that in the plaint, in para 6 it was clearly averred that the suit was filed to set aside the consent decree passed by the Court of learned Civil Judge (J.D) Gandhinagar in Regular Civil Suit No. 89 of 1996 as it was obtained by the original defendants No.1 to 3 by fraud and misrepresentation. It was cleared that reliefs, which was sought, were consequential to the principal relief that the consent decree passed in Regular Civil Suit No. 89 of 1996 was to be set aside. That, the Court below has committed an error in considering the prayer clause in Para 8 of the plaint. It was further submitted that the suit of the plaintiffs was barred under Order XXIII Rule 3A of the CPC, which trial Court has not considered in a proper way. It was further submitted that the suit was not maintainable to set aside the consent decree passed in another suit and if such suit is filed to set aside the consent decree passed in another suit, it shall be rejected under Order VII Rule 11(1) of CPC. That, Court below has failed to consider the provisions contained under Order VII Rule 11 as well as Order XXIII Rule 9 of the CPC. That, in the aforesaid provisions, legislature has used word “shall” and therefore, trial Court was bound to reject the plaint as prayed by the defendant No.3. That, the observations of the trial Court while passing the order that principal relief sought by the plaintiff was to set aside the documents of Power of Attorney given by Mr. Chandulal M. Purohit as same was used after his death was erroneous and illegal. That, the observations of the trial Court while passing the order that principal relief sought by the plaintiff was to set aside the documents of Power of Attorney given by Mr. Chandulal M. Purohit as same was used after his death was erroneous and illegal. That, Court below has committed an error in holding that under Order VII Rule 11 of CPC, suit of the plaintiff cannot be partly rejected. That, defendant No.3 has made his prayer to reject the whole suit as same was brought by the plaintiffs for setting aside the consent decree. That, further reliefs sought by the plaintiffs were consequential in addition to set aside the Power of Attorney which Court below has not properly appreciated the averments made in the plaint including nomenclature. In support of his arguments, learned advocate for the applicant has relied upon the decision of the Full Court of this Court in case of Sakina Sultanali Sunesara (Momin) and others Vs. Shia Imami Ismaili Momin Jamat Samaj and others reported in 2019 (3) GLH 256 . 6. Learned advocate appearing for the respondent No. 7 to 14 has supported the arguments advanced by learned advocate for the applicant and submitted to quash and set aside the impugned judgement order passed below Exh. 292 in Regular Civil Suit No. 72 of 1997 dated 24th July, 2019, considering the ratio laid down by the Full Court of this Court in judgement rendered in case of Sakina Sultanali Sunesara (Momin) and others (Supra). 7. Having heard learned advocate appearing for the applicant and learned advocate appearing for the respondent Nos. 7 to 14 as well as documents produced on record, it appears that present applicant was not party in Regular Civil Suit No. 89 of 1996 filed by Shri Anilbhai Shantilal Gandhi and Amijara Farms Pvt. Ltd. against Shri Jayeshkumar Chhakaddas Shah before the learned Civil Judge (J.D.) at Gandhinagar. It was a suit for permanent injunction restraining the defendants from entering in the suit property or taking away the possession of the plaintiff. It appears that dispute was settled between the parties and agreement was executed vide Exh. 15 under their signatures. They admit the contents of the agreement before the Court as well as their signatures declaring that in respect of the suit property, no proceedings were initiated about N.A., N.O.C or converting in non agriculture purpose by any of the authorities. It appears that dispute was settled between the parties and agreement was executed vide Exh. 15 under their signatures. They admit the contents of the agreement before the Court as well as their signatures declaring that in respect of the suit property, no proceedings were initiated about N.A., N.O.C or converting in non agriculture purpose by any of the authorities. The Court noted that the compromise was limited to both the parties and it was recorded on 12th April, 2018. Accordingly, decree was passed by the Court below on 12th April, 1996. As noted above, respondent Nos. 1 to 4 were not party in the previous suit i.e. Regular Civil Suit No. 89 of 1996. Thereafter, second suit i.e. Regular Civil Suit No.72 of 1997 was filed by respondent Nos. 1, 2, 3 and 4 against respondent Nos. 5 , 6 and present applicant for setting aside the decree passed in Regular Civil Suit No. 89 of 1996 on 13th February, 1997. Present applicant, being defendant No.3 in the second suit, preferred an application Exh. 292 under Order VII Rule 11 of CPC contending that the suit was barred under Order XXIII Rule 3A of the CPC. Learned Court below, after hearing the parties, was pleased to reject the said application [Exh. 292] by judgement and order dated 24th July, 2019. 8. Full Court of this Court in the judgement in case of Sakina Sultanali Sunesara (Momin) and others (Supra) has held the following issues in judgement:- "(A) In case of a decree passed by the Trial Court, on the basis of compromise between the parties ('Consent Decree'), what remedy the 'aggrieved party' would have before the Appellate Court. Whether it would be ‘First Appeal’ under Section 96 of CPC or ‘Appeal from Order’ under Order 43 Rule 1 A of the CPC. (B) Which of the following two sets of the decisions of the Division Benches of this Court, connotes the correct position of law. (i) Judgment of the Division Bench of this Court dated 04.07.2013 recorded on First Appeal No.3804 of 2012 in the case of Legal Heirs of Decd. Ullasbhai Parsottambhai (supra) and (ii) Order of the Division Bench of this Court dated 27.12.2012 recorded on Civil Application No.11987 of 2012 in the case of Indiraben Ratilal Adhia (supra). (i) Judgment of the Division Bench of this Court dated 04.07.2013 recorded on First Appeal No.3804 of 2012 in the case of Legal Heirs of Decd. Ullasbhai Parsottambhai (supra) and (ii) Order of the Division Bench of this Court dated 27.12.2012 recorded on Civil Application No.11987 of 2012 in the case of Indiraben Ratilal Adhia (supra). OR (i) The judgment of the Division Bench of this Court, in the case of M/s. Sanskruti Infra Developers Pvt. Ltd. (supra), (dated 16.08.2016 recorded on First Appeal No.2536 of 2015) as noted in para:7.1 above, and (ii) the judgment of the Division Bench of this Court in the case of Kantibhai Viththalbhai Ukani (supra), (Civil Application (Leave to Appeal) No.5223 of 2016 order dated 11.08.2016), as noted in para:7.2 above. (C) Whether an application by an 'aggrieved party' before the Trial Court for setting aside a 'consent decree', invoking Order 23 Rule 3 of CPC would be maintainable." 9. This Court would also like to refer Order 23 of Rule 3A of Order XXIII which reads as under : "R.3. Compromise of suit.— Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree is accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation—An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;" "3A. Explanation—An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;" "3A. Bar to suit.— No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." 10. Rule 1A of Order XLIII reads as under:- "1A. Right to challenge non appealable orders in appeal against decrees. (1) Where any order is made under this Code against a party and thereupon any judgement is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgement should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a 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." 11. Section 96 of CPC reads as under:- “96. Appeal from original decree: (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subjectmatter of the original suit does not exceed ten thousand rupees.” 10. 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 3A. (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. 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 second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code. 11. Hon’ble Full Court has also held that no suit shall lie in setting aside the decree passed under under Rule 3 of Order XXIII on the ground that the compromise, on which the decree is based, was not lawful, in view of the bar contained under Rule 3A of Order XXIII. 11. Hon’ble Full Court has also held that no suit shall lie in setting aside the decree passed under under Rule 3 of Order XXIII on the ground that the compromise, on which the decree is based, was not lawful, in view of the bar contained under Rule 3A of Order XXIII. It was further held that if the aggrieved party was not the party to the suit, the remedy available to him to challenge the decree passed by the Court on the basis of compromise between the parties to the suit (consent decree), would be to file an appeal under Section 96(1) of CPC, with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of CPC. 12. Considering the provisions as discussed above and facts that present respondent Nos. 1 to 4 were not party in the previous suit i.e. Regular Civil Suit No. 89 of 1996 wherein, consent decree was passed by the learned Court below on 12th April, 1996, instead of filing an appeal as provided under Section 96(1) of CPC or with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of CPC, they preferred second suit i.e. Regular Civil Suit No. 72 of 1997 before the learned Sr. Civil Judge at Gandhinagar which was clearly barred by the provisions of Order XXIII Rule 3A of the CPC. 13. Another decision of the Hon’ble Apex Court in case of Srihari Hanumandas Totala Vs. Civil Judge at Gandhinagar which was clearly barred by the provisions of Order XXIII Rule 3A of the CPC. 13. Another decision of the Hon’ble Apex Court in case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and others reported in 2021(9) SCC 99 as framed the guiding principles for deciding an application under Order 7 Rule 11(d) of CPC, which can be summarized as follows:- “(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application; (iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.” 14. Indisputedly, second suit was filed by the respondent Nos. 1 to 4 for setting aside the consent decree passed by the learned Civil Judge (Junior Division) Gandhinagar in Regular Civil Suit No. 89 of 1996 on 12th April, 1996. From the averments of the plaint itself, the suit was barred under Order XXIII, Rule 3A of CPC. However, Court below has misinterpreted the provisions of Order 7 Rule 11 of CPC by dismissing the application and made certain observations which were not necessary. The suit was not only on the basis of Power of Attorney or prayer was not limited in the suit. Consequential prayer was also required to be considered by the Court below while deciding an application Exh. 292. The suit was not only on the basis of Power of Attorney or prayer was not limited in the suit. Consequential prayer was also required to be considered by the Court below while deciding an application Exh. 292. It is cleared that in order to consider Order 7 Rule 11 of CPC, the Court has to look into the averments in the plaint and same can be exercised by the Court below at any stage of the suit. It is the duty of the Court to scrutinize the averments /pleadings in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. 15. For the above reasons, this Court hold that the plaint was liable to be rejected under Order 7 Rule 11(d) of CPC. Accordingly, this application is hereby allowed. Impugned order passed below Exh. 292 in Regular Civil Suit No. 72 of 1997 by the learned 3rd Additional Senior Civil Judge, Gandhinagar on 24.7.2019 is hereby quashed and set aside. Accordingly, plaint shall be rejected as it is barred under Order XXIII of Rule 3A of CPC.