Sunday, 27 November 2016

Whether review petition by stranger to compromise decree is tenable?

In   that   view   of   the   matter,   this
Court   is   of   the   opinion   that   the   review
application deserves no consideration.   This
Court is bound by the ratio laid down in two
judgments delivered at Principal Seat, cited
across   the   bar   by   the   learned   counsel
appearing for the respondents in the case of
Khalil Haji Bholumiya Salar (cited supra) and
also in the case of Ramkrishna Shridhar & Ors
(cited supra) wherein the view is taken that
stranger   to   the   suit   is   a   stranger   to   the
agreement of compromise and he cannot file an
application   either   in   the   suit   or   in   the
appeal proceedings to challenge a compromise
decree as he is not a party to the suit, bar
under  Rule   3A  of   Order   23  of  CPC   cannot   be
extended to him, said provision must confine
only   to   the   parties   to   the   suit   who   are
parties to the compromise agreement, stranger
to   a   compromise   decree   cannot   file   an

application   in   a   suit   or   an   appeal   to
challenge   a   compromise   as   not   being   lawful,
but   must   file   a   separate   suit   for   the
purpose.   
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 5416 OF 2012
IN 
SECOND APPEAL NO. 356 OF 2001
WITH 
CIVIL APPLICATION NO. 5417 OF 2012 
Gaurishankar s/o.Rukhmeshchandra Mishra,  

V
 Asaram s/o. Shankar Jagdale,  

      CORAM:  S.S.SHINDE, J.  
      
Dated : 30.08.2016 
Citation:2016 (6) ALLMR 378

1] This Civil Application is filed for
recalling   the   order   dated   23.12.2011   passed
in   Second   Appeal   No.356/2001,   thereby
disposing   of   the   Second   Appeal   in   terms   of
compromise arrived between the parties to the
Second Appeal.   

2] The learned Senior Counsel appearing
for the applicant submits that the applicant
was   not   aware   about   the   filing   of   Second
Appeal   by   respondent   nos.2   and   3,   and
respondent   no.1   also   did   not   inform   the
applicant   about   the   pendency   of   Second
Appeal. Respondent nos. 2 and 3 therein filed
Regular   Civil   Appeal   No.183/1995   before   the
District   Court,   Aurangabad.   Being   aggrieved
by   the   judgment   and   order   dated   29.06.1995
passed in Regular Civil Suit No.475/1994, the
said Appeal was allowed and the judgment and
decree   dated   29.06.1995   passed   in   Regular
Civil   Suit   No.475/1994   was   set   aside.   Being
aggrieved  by the said judgment  and order by
the   First   Appellate   Court,   the   appellant
preferred   Second   Appeal.   The   Appeal   was
admitted.  
3] It   is   submitted   that   though
respondent   nos.2   and   3   in   Appeal   were
restrained from alienating the suit property,

still respondent no.3 herein executed a sale
deed   dated   18th  August,   2006   in   faovur   of
respondent nos.9 and 10 and sold 20 R. land
from   Gat   No.88   for   consideration   of   Rs.5
lacs.   It is submitted that since respondent
nos.9   and   10   were   well   aware   about   the
pendency   of   the   Second   Appeal   and   the   stay
order dated 20.12.2001, still respondent nos.
8 and 9 in collusion with respondent no.3 got
executed   the   sale   deed   in   respect   of   suit
land bearing Gat No.88. Therefore, respondent
no.1   filed   Contempt   Petition   No.34/2007   and
prayed   for   taking   necessary   action   against
the   concerned   respondents   including
respondent nos.3, 9 and 10. The said Contempt
Petition came up for hearing before the High
Court,  and the Court observed  that the sale
deed executed by respondent no.3 in favour of
respondent nos.9 and 10 is contrary to and in
violation   of   the   order   dated   20.12.2001
passed   in   Civil   Application   No.5439/2001   in

Second   Appeal   No.356/2001.     Accordingly,   by
order   dated   02.07.2007,   the   High   Court
appointed   the   Court   Receiver   in   respect   of
the   entire   suit   property,   including   the
portion sold to respondent nos. 9 and 10. The
Contempt Court has also restrained respondent
nos.3,   9   and   10   from   alienating   the   suit
properties including Gat No.88.   The learned
Senior   Counsel   invited   my   attention   to   the
order   dated   02.07.2007   passed   in   Contempt
Petition No.34/2007.
4] It   is   submitted   that   in   spite   of
stay   order   dated   20.12.2001   passed   in   Civil
Application No.5439/2001 in Second Appeal No.
356/2001 and in Contempt Petition No.34/2007,
the public proclamation for selling the suit
property   bearing   Gat   No.88   was   published   in
daily   news   paper   dated   25.06.2009.     It   was
stated in the said proclamation that there is
agreement to sell in respect of the said suit
land and if anybody has objection, he should

submit   the   said   objections   to   the   concerned
Advocate.  Since there was again violation of
the interim orders passed by the High Court,
therefore,   respondent   no.1   again   filed
Contempt   Petition   No.251/2009   in   Contempt
Petition No.34/2007.  On 28.08.2009, the High
Court issued notices in Contempt Petition No.
251/2009.   It   is   submitted   that   though   the
various   proceedings   were   pending   before   the
Court,   still   respondent   no.1   did   not   inform
the   applicant   anything   about   the   said
proceeding. The applicant was not joined as a
party   respondent   to   the   said   proceedings.
The   applicant   was   not   aware   about   the   said
proceedings.   Respondent   no.1   as   well   as
respondent Nos.2A to 2F and 3 were very much
aware about the execution of sale deeds dated
26.02.1998   and   29.09.1998   in   favour   of   the
present applicant. Still the said respondents
tried to compromise the matter by overlooking
the   right   of   the   present   applicant.   The

applicant came to know about the said fact in
the   month   of   November   2011,   and   thereafter,
immediately i.e. on 07.12.2011, the applicant
filed   Civil   Application   No.15083/2011   for
intervention   in   Second   Appeal   No.356/2001.
However,   the   said   Civil   Application   was   not
considered by the High Court.
5] It   is   submitted   that   in   spite   of
knowledge  to the respondent nos.1,  2A to 2F
and 3 about the sale deeds executed in favour
of   applicant   on   26.02.1998   and   29.09.1998,
they   proceeded   to   compromise   the   matter   by
filing compromise pursis. Neither the present
applicant, nor the purchasers i.e. respondent
nos.9 and 10 were made as party to the said
compromise pursis. It is submitted that Civil
Application No.13220/2011 came up for hearing
on   04.11.2011   before   this   Court   and
accordingly   the   order   was   passed   accepting
the   compromise.     The   record   shows   that   the
said   Civil   Application   was   filed   on

03.11.2011. On 04.11.2011, the compromise was
recorded by the learned Registrar (Judicial).
On   perusal   of   the   record,   it   would   reveal
that   the   compromise   was   recorded   in   Civil
Application   No.13219/2011   filed   in   Contempt
Petition   No.34/2007.   The   learned   Registrar
(Judicial)   observed   in   his   order   dated
04.11.2011 that respondent nos.9 and 10 (i.e.
respondent   nos.8   and   9   of   Contempt   Petition
No.34/2007)   were   not   parties   to   the
compromise   pursis.   The   Registrar   further
observed that respondent nos.2­A to 2F (i.e.
respondent   nos.1   to   6   of   Contempt   Petition
No.34/2007) were discharged from the Contempt
proceedings.   Therefore, it is crystal clear
that   the   Registrar   (Judicial)   has   recorded
the   compromise   in   Contempt   Petition
No.37/2007.   The   record   shows   that   the
compromise   filed   vide   Civil   Application   No.
13220/2011   in   Second   Appeal   No.356/2001   was
not recorded.

6] It is submitted that while disposing
of the Second  Appeal in terms  of compromise
pursis, this Court has specifically observed
that the compromise entered into between the
parties   is   at   their   own   risk   and
responsibility.   It   is   submitted   that   the
compromise   pursis   filed   vide   Civil
Application   No.13220/2011   in   Second   Appeal
No.356/2001   was   not   at   all   verified   by   the
learned   Registrar   (Judicial).     The   record
shows   that   the   compromise   filed   vide   Civil
Application   No.13219/2011   in   Contempt
Petition   No.34/2007   was   verified   by   the
Registrar   (Judicial)   On   04.11.2011.     It   is
submitted  that as soon as the Second Appeal
came   to   be   disposed   of   by   order   dated
23.12.2011, respondent no.3 has executed the
registered   sale   deed   dated   26.12.2011   in
favour of respondent nos.4 to 8 and sold 66
R. land from Gat No.88 for Rs.2,06,85,000/­.
Respondent   nos.1   and   2­A   to   2­F   are

consenting   parties   to   the   said   sale   deed.
That   apart,   some   other   persons   are   also
consenting party to the said sale deed.   On
perusal   of   the   recitals   of   the   sale   deed
dated   26.12.2011,   it   would   reveal   that   the
sale   deed   was   drafted   in   the   month   of
November,   2011,   itself.   That   apart,   the
record   shows   that   before   that   the   parties
have   entered   into   agreement   for   selling   the
suit property and the amount was also paid by
cheques. The recitals of the sale deeds shows
that the amount of consideration was paid in
the   month   of   October   and   November   2011   by
issuing cheques. Thus, though there was stay,
still respondent Nos.1, 2A to 2F, 3 and 4 to
8   have   entered   into   an   agreement   and
completed   all   the   formalities   for   execution
of the sale deed.  The said fact itself shows
that the respondent nos.1, 2­A to 2­F, 3 and
respondent  nos.4 to 8 have played  the fraud
and   got   executed   the   sale   deed.   It   is

submitted that the evidence on record clearly
shows that the respondents have obtained the
decree   by   playing   fraud   and   thereafter   got
executed   the   sale   deed   by   overlooking   the
right   of   the   present   applicant.   Therefore,
the said sale deeds deserves to be declared
as null and void.            
7] It   is   further   submitted   that
respondent no.1 executed the registered sale
deeds   dated   26.02.1998   and   29.09.1998   in
pursuance   of   the   agreement   to   sell   dated
16.12.1995 and sold 94 R. land from Gat No.88
to the present applicant.   Respondent nos.2­
A,   2­C   and   2­F,   being   Legal   representatives
of   deceased   respondent   no.2   have   also   given
consent to the said sale deeds.   Respondent
nos.1, 2­A to 2­F and 3 to 10 were very well
aware   about   the   right   of   the   applicant.
Still respondent no.3 executed the sale deed
dated 18.08.2006 in favour of respondent nos.
9 and 10 and sold 20 R. land from Gat No.88

though   there   was   injunction   order   passed   by
this Court.  Thereafter, respondent nos.1, 2­
A   to   2­F   and   3   again   sold   66   R.   land   to
respondent nos.4 to 8 by executing sale deed
dated   26.12.2011.     The   record   shows   that
before   compromising   the   matter   and   in   spite
of   injunction   order,   the   said   respondents
entered   into   the   transaction   regarding
selling   of   the   land.     By   suppressing   all
these facts, the respondents herein have got
compromise the matter.  The record shows that
by   playing   fraud   the   respondents   have
obtained the decree of compromise. Therefore,
the   order   dated   23.12.2011   deserves   to   be
recalled.
8] It   is   submitted   that   the   applicant
is   having   substantive   right   in   the   suit
property bearing agricultural land Gat No.88.
The Civil Application filed by the applicant
bearing  Civil  Application  No.15083/2011  came
to be disposed of without any speaking order.

When the matter was heard on 23.12.2011, the
advocate   of   the   applicant   as   well   as   the
applicant   was   not   present,   and   therefore,
Civil Application No.15083/2011 filed by the
applicant   was   not   brought   to   the   notice   of
this Court.   It is submitted that by way of
filing   compromise   pursis,   the   other   parties
have accepted the share of the respondent no.
1 in the property.   Respondent no.1 had sold
the   suit   property   to   the   applicant   by
executing two sale deeds dated 26.02.1998 and
29.09.1998. However, the said aspect has not
been considered at all while disposing of the
Second Appeal.  It is submitted that when the
sale   deeds   were   executed   in   favour   of
applicant   and   the   applicant   was   put   in
possession of the property from Gat No.88 by
respondent   no.1,   the   question   of   accepting
compromise without the applicant is party to
the   said   proceedings   does   not   arise.
Therefore, the order disposing of the Second

Appeal deserves to be recalled.  
9] It   is   submitted   that   since   the
applicant   is   a   aggrieved   person,   the
application   for   recalling/review   is
maintainable.   The   learned   Senior   Counsel
invited my attention to the reported judgment
in the case of Shapoorji Data Processing Ltd.
Vs.   Ameer   Trading   Corporation   Ltd.1 and
submits that in the said judgment, the High
Court has taken a view that for filing review
application   party   must   be   ‘aggrieved   party’
and   must   file   petition   within   time   limit.
Though the person is not party to proceedings
but is aggrieved person, can file the review
petition. Learned Senior Counsel also invited
my   attention   to   the   judgment   of   the   High
Court   in   the   case   of  Dinkar   Indrabhan
Kadaskar & Ors. Vs. Grampanchayat Bhagwatipur
& Ors.2  and submits  that,  in that  case also
the   High   Court   held   that   the   applicants
1 AIR 2003 Bombay 228
2 2009 (1) Bom.C.R. 39

therein   are   aggrieved   persons   being
interested   in   affairs   of   trust,   therefore,
review   application   is   maintainable   though
they   were   not   parties   to   proceedings.
Relying   upon   the   judgment   of   the   Supreme
Court in the case of A.Nawab John and others
Vs.  V.N.Subramaniyam3 and  in  particular  para
22 thereof, it is  submitted that a  pendente
lite  purchaser’s   application   for  impleadment
should   normally   be   allowed   or   ‘considered
liberally’.   The   learned   Senior   Counsel
further   pressed   into   service   exposition   of
law in the case of Dhanlakshmi and others Vs.
P. Mohan and others4 and in particular para 5
thereof   and   submits   that   in   that   case   also
the   Court   has   taken   a   view   that   the
appellants therein were necessary parties to
the suit. He also invited my attention to the
reported   judgment   in   the   case   of  T.G.Ashok
Kumar   Vs.   Govindammal   and   another5.  He
3 [2012] 7 SCC 738
4 [2007] 10 SCC 719
5 [2010] 14 SCC 370

further   placed   reliance   in   the   case   of
A.V.Papayya   Sastry   and   others   Vs.   Govt.   of
A.P.   and   others6  and   submits   that   fraud
vitiates all judicial acts whether in rem or
in   personam   hence   judgment,   decree   or   order
obtained   by   fraud   has   to   be   treated   as  non
est  and   nullity,   whether   by   court   of   first
instance   or   by   the   final   court.   It   can   be
challenged   in   any   court,   at   any   time,   in
appeal, revision, writ or even in collateral
proceedings.   For   the   said   preposition,   he
further   pressed   into   service   exposition   of
law in the case of  T.Vijendradas & Anr. Vs.
M.   Subramanian   &   Ors.7.    Therefore,   relying
upon   the   averments   in   the   application,
grounds   taken   therein,   annexures   thereto,
relevant   documents   and   the   aforesaid
judgments cited during the course of hearing,
the learned Senior Counsel appearing for the
applicant   submits   that   the   application
6 [2007] 4 SCC 221
7 2008 [1] All MR 446

deserves to be allowed.  
10] The   learned   counsel   appearing   for
respondent no.1 relying upon the averments in
the   affidavit­in­reply   and   also   additional
affidavit­in­reply   made   following
submissions:
11] The   present   controversy   is   flowing
from Regular Civil Suit No.475/1994 filed by
the   original   plaintiff­appellant   Asaram   for
effecting the partition and possession of the
property belong to HUF. The controversy about
the   right   of   intervener­applicant   under   the
alleged   sale   deeds   to   the   extent   of   the
property   mentioned   therein,   therefore,   the
dispute sought to be raised by him is outside
the   scope   of   the   suit   for   partition.   The
character  of a suit for partition  cannot be
converted into a suit by a stranger like the
applicant   herein,   based   on   title   for   the
recovery of possession as – (i) The cause of

action for such a subsequent proceeding would
be different;  (ii) The pleadings of the two
proceedings would not go hand in hand; (iii)
The reliefs claimed by the parties  would be
altogether   different;   (iv)   The   points   in
issue,   the   evidence,   both   oral   as   well   as
documentary   in   the   two   proceedings   would   be
at   variance   with   each   other;   (v)   All   the
issues   or   matters   referred   to   above   involve
disputed   questions   of   fact   which   cannot   be
gone   into   in   a   Second   Appeal   by   the   High
Court   at   the   behest   of   a   stranger   to   a
proceeding   and   (vi)   so   also   the   source   of
rights   claimed   by   the   parties   would   be
totally   different.   The   learned   counsel
appearing   for   respondent   no.1   pressed   into
service   exposition   of   law   in   the   case   of
Kasturi   Vs.   Iyyamperumal   and   others8 and
submits   that   in   the   facts   of   that   case   the
Supreme Court has taken a view  that a  party
who   is   approaching   the   Court   by   invoking
8 [2005] 6 SCC 733

Order 1 Rule 10 for becoming a party to the
proceedings   must   satisfy   two   tests  firstly,
there must be a right to some  relief against
such   party   in   respect   of   controversies
involved in the proceedings, or, secondly, no
effective   decree   can   be   passed   in   his
absence.     It   is   submitted   that   the   review
applicant   has   alleged   that   the   original
plaintiff in Regular Civil Suit No.475/1994 –
the   appellant   in   the   Second   Appeal   and
respondent in the application for review had
executed two sale deeds dated 26.02.1998 and
29.09.1998   in   his   favour   in   respect   of   two
portions,   admeasuring   63   and   32   R.
respectively,   in   the   suit   property   bearing
Gat   No.88.   The   alleged   sale   deeds   under
consideration   are   executed   after   the   decree
of the trial Court in Regular Civil Suit No.
475/1994   was   stayed   by   the   Appellate   Court,
Aurangabad.   in   a   substantive   appeal   i.e.
Regular   Civil   Appeal   No.183/1995   filed   by

Shankar and Babasaheb ­ original defendants.
The   learned   District   Judge,   Aurnagabad,   was
pleased to pass an order below Exhibit­5 i.e.
the Stay Petition in Regular Civil Appeal No.
183/1995 on 20.07.1995, by which the stay was
granted   to   the   execution   of   the   decree   in
Regular Civil Suit No.475/1994 until further
order.     Therefore,   the   original   plaintiff   –
appellant gets no right of disposition to the
suit   property   and   had   no   authority   in   the
eyes of law to execute the alleged sale deeds
dated   26.02.1998   and   29.09.1998,   thus,   the
alleged   sale   deeds   are   executed   by
incompetent person, who had no right over the
suit property, thus no right divested to the
applicant   under   the   alleged   sale   deeds,
therefore,   the   applicant   has   no   right,
interest,   title,   ownership   and   possession
over   the   suit   property.     Further,   the   suit
property   was   then   owned   and   possessed   by
Babasaheb   i.e.   the   respondent   no.2,   who   is

the   brother   of   the   original   plaintiff,
Asaram­appellant.   Therefore,   the   appellant
had   no   right   to   execute   the   alleged   sale
deeds in favour of the applicant.
12] It   is   submitted   that   Regular   Civil
Appeal   No.183/1995,   which   was   filed   by   the
original   defendant   nos.1   and   2   i.e.
respondent   no.2   in   this   application,   was
allowed by the Appellate Court on 20.06.2001
and the suit was dismissed.  It is submitted
that   the   entire   litigation   is   about   the
partition in the joint family which consisted
the plaintiff and the defendants in the suit
and the suit property had fallen in the share
of the original defendant no.2. The applicant
was   never   put   in   possession   of   the   subject
matter   of   the   alleged   two   sale   deeds,
therefore,   the   recitals   are   contrary   to   the
fact and record.  It is the contention of the
applicant that there was rise in the share of
Asaram   by   virtue   of   the   alleged

relinquishment of their share by the sisters
of   Asaram   is   imaginary   and   amounts   to
superseding   and   modifying   the   decree   passed
by the District Court, Aurangabad, that too,
without   suffering   any   adjudication   in   that
behalf.   The   learned   counsel   appearing   for
respondent   no.1   invited   my   attention   to   the
averments   in   the   affidavit­in­reply   and
submits that it is stated that respondent no.
1–Asaram had been addicted to liquor. He was,
therefore,   always   in   dire   need   of   money
almost   every   day.     The   applicant   has   taken
undue advantage of the vices of the appellant
and has obtained his signatures on the blank
papers   and   converted   the   same   into   the
alleged sale deeds in his own favour. It is
submitted   that   both   these   documents   are
forged   and   bogus.   The   alleged   agreement   of
sale deed dated 16.12.1995 regarding an area
of 62 R. out of Gat No.88, the alleged sale
deed dated 26.02.1998 in that behalf and the

alleged sale deed dated 29.09.1998 in respect
of   an   area   of   32   R.   are   void   for   want   of
certainty and identity of the subject matter
of transactions because admittedly the decree
for partition and separate possession passed
by the trial Court was stayed by the District
Court  and the said decree  was a preliminary
decree   and   the   final   decree   was   not   then
drawn. Assuming for the sake of argument that
the appellant was entitled to sell an area of
62 R. out of Gat No.88 to the extent of his
alleged 1/3rd share therein, as it then stood,
he   was   prohibited   from   exercising   his   right
to do so by virtue of the stay order of the
District   Court   in   Regular   Civil   Appeal   No.
183/1995, operating against the decree of the
trial   Court.   Further,   the   alleged   second
sale­deed   is   equally   illegal   for   one   more
reason   that   the   same   was   executed   by   the
appellant   over   and   above   his   alleged   and
presumed   entitlement   to   the   extent   of   1/3rd

share   in   the   suit   property.     The   so­called
sale   deeds   dated   26.02.1998   and   29.09.1998
which  are being relied  on by the intervener
have seen light of the day for the first time
in the year 2012. The said documents were not
acted upon for over a period of 13 years.  In
the   natural   course   of   things,   a  bona   fide
purchaser for a valuable consideration would
have and ought to have exhibited and asserted
his title  by some manifestation, one way or
the   other,   however,   the   applicant   has   not
acted  bona   fide,   which   proves   beyond   doubt
that   the   alleged   sale   deeds   are   false   and
never meant to be executed.   
13] The   very   fact   that   the   appellant   –
original   plaintiff   had   filed   the   original
suit for partition and separate possession of
his alleged share in the suit property, shows
that he was never in possession of the suit
property.     As  a  sequel   to  it,  he   could   not
deliver   possession   of   the   same   to   the

applicant.  It, therefore, negatives not only
the   veracity   of   the   recitals   regarding
delivery   of   possession   of   the   properties
under   the   sale   deeds   to   the   applicant,   but
also of the legality and validity of alleged
sale   deeds.   It   further   proves   appellant’s
version   that   the   two   alleged   transactions
were not genuine. It can be said with a very
high   degree   of   certainty   that   whenever   any
sale­deed   is   without   delivery   of   possession
of the property it becomes unconscionable and
gives   rise   to   a   presumption   against   its
veracity   and   genuineness.   The   applicant   was
not   an   agriculturist   on   the   date   of   the
alleged transactions and the same are void on
that count also. The applicant has never made
attempt   to   file   application   for   impleading
him   party   in   Regular   Civil   Appeal   No.
183/1995. In fact, the recital of the alleged
sale   deed   clearly   makes   mentioned   about
Regular   Civil   Suit   No.475/1994,   and


therefore,   the   contention   of   the   applicant
cannot   be   accepted   that   he   was   not   aware
about pendency of Regular Civil Appeal. It is
submitted that the claim of the applicant is
barred by limitation.  The Civil Application,
which was filed by the applicant in the year
2011   in   the   Second   Appeal,   was   never
prosecuted   and   the   applicant   was   never   made
party  in the Second Appeal. It is submitted
that the validity of the compromise cannot be
challenged   by   the   applicant,   who   was   not
party either to the suit/Regular Civil Appeal
or in the Second Appeal. No stranger can be
allowed to foist a compulsion on the estwhile
parties   to   any   proceeding,   who   have   arrived
at   an   amicable   settlement,   to   once   again
litigate amongst themselves at the behest of
a   non­party   to   the   proceeding.   It   is
submitted   that   all   parties   to   the   Second
Appeal   entered   into   compromise,   and
therefore, it cannot be said that the parties

to the Second Appeal have played fraud on the
Court.   The   compromise   was   verified   and   also
the   Court   ascertained   that   the   said
compromise   is   without   any   coercion   or   with
free   will.   None   of   the   parties   to   the
compromise   has   ever   raised   any   doubt   about
the   genuineness   of   the   compromise.   The
applicant   has   no   locus   standi   to   raise   any
question   mark   on   the   veracity   of   the
compromise, its endorsement and the location
of   the   endorsement.   In   support   of   the
aforesaid   contention,   the   learned   counsel
appearing   for   the   respondent   no.1   pressed
into service exposition of law in the cases
of  Khalil   Haji   Bholumiya   Salar   &   Anr.   Vs.
Parveen   w/o.   Sayyeduddin   Razak   &   Ors.9,
Ramkrishna   Shridhar   &   Ors.   Vs.   The   Court
Receiver & Ors.10, Shyam Lal and another Vs.
Sohan   Lal  and others11, Amarnath and others
9 2012 (12) LJSOFT 417
10 2011 (1) All MR 623
11 AIR 1928 Allahabad 3

Vs. Deputy Director of Consolidation, Kanpur
and another12, Siddalingeshwar and others Vs.
Virupaxgouda   and   others13,   Horil   Vs.   Keshav
and   Another14  and   Hussainbhai   Allarakhbhai
Dariaya and others Vs. State of Gujarat and
others15.  It   is  submitted   that   the   applicant
is   raising   disputed   questions   of   facts
inasmuch as he wishes to prove the sale deed
executed in his favour in Review Application
filed in the Second Appeal. Such controversy,
which   is   beyond   scope   and   purview   of   the
Second   Appeal,   cannot   be   gone   into   by   this
Court.    
14] The   learned   counsel   appearing   for
the   other   non   applicants/respondents   in   the
Second   Appeal   submits   that   they   adopt   the
argument of the learned counsel appearing for
respondent no.1.   The learned Senior Counsel
appearing   for   respondent   nos.4   and   8   also
12 AIR 1985 Allahabad 163
13 AIR 2003 Karnataka 407
14 (2012) 5 SCC 525
15 (2010) 8 SCC 759

invited my attention to the various documents
and also to the various judgments and submits
that   the   review   application   is   not
maintainable   since   the   same   raises   disputed
questions   of   fact,   and   such   consideration
would   fall   outside   the   purview   of   the
controversy involved in the Second Appeal.   
15] I   have   given   careful   consideration
to   the   submissions   of   the   learned   Senior
Counsel   appearing   for   the   applicant,   the
learned counsel appearing for the respondent
nos.1   and   2   and   the   learned   Senior   Counsel
appearing   for   the   respondent   Nos.4   and   8.
With   their   able   assistance,   perused   the
averments   in   the   application,   annexures
thereto   and   the   entire   original   record
pertains   to   the   Second   Appeal   No.356/2001.
Upon careful perusal of the averments in the
application   for   review,   it   is   abundantly
clear that the applicant was not party to the
suit/Regular   Civil   Appeal   or   in   Second

Appeal.  The contention of the learned senior
counsel appearing for the applicant that the
applicant   filed   Civil   Application   for
intervention / for impleading him as party in
the   Second   Appeal   came   to   be   disposed   of
without any adjudication, and therefore, the
present   application   for   review,   deserves   to
be entertained, has no force. Merely because
the   applicant   filed   application   for
impleading him party in the Second Appeal in
the   year   2011,   and   same   was   kept   pending
without   prosecuting   the   same,   would   not
entitle   the   applicant   to   file   review
application   when   he   was   not   impleaded   as
party   respondent   in   Second   Appeal.     Upon
perusal   of   record   it   appears   that,   the
Advocate,   who   filed   such   application   on
behalf  of the applicant, was not present on
the date of disposal of the Second Appeal, or
even on earlier dates whenever Second Appeal
was listed before the Court for hearing. The

said Civil Application came to be disposed of
in view of disposal of Second Appeal without
passing any specific orders and as a result
the   applicant   was   not   made   party   to   the
Second   Appeal   till   disposal   of   the   appeal.
There   is   two   fold   contention   of   the
applicant;   firstly,   the   review   application
can be entertained  at his instance  since he
is   a   ‘aggrieved   person’   and   secondly,   two
sale   deeds   dated   26.02.1998   and   29.09.1998
executed   in   his   favour   by   the   appellant
Asaram,   are   genuine   transactions,   and
therefore,   he   has   right   over   the   suit
property   in   Gat   No.88   to   the   extent   of   the
share   of   appellant   –   Asaram   sold   in   his
favour.     In   the   first   place,   as   already
observed, the review applicant was not party
to the suit / Regular Civil Appeal or Second
Appeal,   and   therefore,   he   is   a   stranger   to
the   said   proceedings,   which   ultimately
culminated   into   the   disposal   of   the   Second

Appeal in terms of settlement arrived between
the parties to the Second Appeal.   Secondly,
even to hold that the review applicant is a
aggrieved   person,   the   Court   of   competent
jurisdiction   was   not   approached   by   the
applicant to adjudicate his contention that,
two   sale   deeds   dated   26.02.1998   and
29.09.1998   executed   by   the   appellant   Asaram
in favour of applicant is a result of lawful
and valid transaction and by virtue of it, he
became   owner   and   came   in   possession   of   the
said   property.    The   appellant   in   Second
Appeal Shri Asaram not only has disputed said
sale transactions, but even by way of filing
additional   affidavit,   the   stand   is   taken   by
him that,  he has never executed the alleged
sale deeds in favour of the applicant. It is
further   stated   in   the   additional   affidavit
that,   even   if   assuming   that   Asaram   has
executed such alleged sale deeds, he was not
competent  to execute the said sale deeds in

view   of   the   stay   granted   by   the   Appellate
Court   to   the   decree   passed   by   the   trial
Court,   and   also   decree   passed   by   the   trial
Court   was   never   sent   to   the   Collector   for
effecting partition by metes and bounds.   It
is   not   necessary   for   this   Court   to   go   into
the greater details, suffice it to say that
the review application at the instance of the
applicant   cannot   be   entertained.   The   issue
raised  by the applicant that two sale deeds
dated   26.02.1998   and   29.09.1998   is   genuine
transaction   and   by   virtue   of   it,   he   became
owner   and   is   in   lawful   possession   of   suit
property,   would   fall   beyond   the   purview   of
controversy   which   was   raised   in   the   Second
Appeal. Such adjudication at the instance of
the applicant would lead to the adjudication
of   the   disputed   questions   of   fact   and   also
would   be   beyond   the   controversy,   which   was
involved in the Second Appeal arising out of
the   proceedings   in   Regular   Civil   Suit   No.

475/1994 filed by Asaram.  
16] In   that   view   of   the   matter,   this
Court   is   of   the   opinion   that   the   review
application deserves no consideration.   This
Court is bound by the ratio laid down in two
judgments delivered at Principal Seat, cited
across   the   bar   by   the   learned   counsel
appearing for the respondents in the case of
Khalil Haji Bholumiya Salar (cited supra) and
also in the case of Ramkrishna Shridhar & Ors
(cited supra) wherein the view is taken that
stranger   to   the   suit   is   a   stranger   to   the
agreement of compromise and he cannot file an
application   either   in   the   suit   or   in   the
appeal proceedings to challenge a compromise
decree as he is not a party to the suit, bar
under  Rule   3A  of   Order   23  of  CPC   cannot   be
extended to him, said provision must confine
only   to   the   parties   to   the   suit   who   are
parties to the compromise agreement, stranger
to   a   compromise   decree   cannot   file   an

application   in   a   suit   or   an   appeal   to
challenge   a   compromise   as   not   being   lawful,
but   must   file   a   separate   suit   for   the
purpose.   
17] In   that   view   of   the   matter,   this
Court   is   of   the   considered   view   that   the
review application deserves no consideration,
the same is devoid of any merits and stands
rejected.  Civil  Application  No.5417/2012   for
adding   as   party   respondents   also   stands
disposed of.    
             Sd/­ 
    [S.S.SHINDE]
                         JUDGE  
At   this   stage,   the   learned   counsel
appearing for the review applicant prays for
continuation   of   interim   order,   which   was   in
force   during   pendency   of   the   Review
Application. The prayer is vehemently opposed
by the learned counsel appearing for the nonapplicants/Respondents.


However, in the interest of justice,
the interim order, which was in force during
pendency of this application, shall remain in
force for further six weeks. 
Sd/­ 
    [S.S.SHINDE]

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