Sunday, 1 March 2020

Whether separate suit is maintainable for execution of consent decree?

The settled legal position, as discussed hereinabove, is that the consent decree is binding. It is an agreement between the parties with the approval of the Court. It may not act as res-judicata but it acts as estoppel. If for the enforcement of a consent decree, a separate suit is permitted to be filed, it will give rise to the multiplicity of the suit. It would be against the intention of the legislature as embodied under Order 23 Rule 3A of CPC. The suit, as such, is not maintainable. The decree passed in Divorce Suit No. 432 of 2007 dated 13.02.2008 is binding upon both the parties. In case of any violation, the Court, which passed the decree, may be moved by the aggrieved party. In case of defiance, the party, effected thereby, may file an execution proceeding. In such execution proceedings definitely all the questions relating to execution, discharge and satisfaction of decree shall be determined. Therefore, while holding that the consent decree passed in Original Suit No. 432 of 2007 has binding effect and no separate suit can be filed to enforce it, this Court is of the view that the suit is not maintainable to enforce the consent decree and accordingly, the suit ought to have been dismissed on this ground alone. Therefore, the appeal deserves to be allowed.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 38 of 2015

Decided On: 23.10.2019

Vineet Kumar Jain Vs.  Archana Garg

Hon'ble Judges/Coram:
Alok Singh and Ravindra Maithani, JJ.

Citation: AIR 2020(NOC) 15 UTTAR

1. The appeal is presented against the judgment and decree dated 30.03.2015 passed by the learned Additional Judge, Family Court, Dehradun in Original Suit No. 191 of 2008, Smt. Archana Garg vs. Sh. Vineet Kumar Jain (for short "the suit"). By the impugned judgment and decree, the suit filed by the respondent for permanent injunction has been decreed.

2. The suit was filed by the respondent wife against her husband, the appellant. Married on 12.12.1993, two children were born out of the wedlock to the parties. Matrimonial discord erupted, continued and got its aggravated form, when for the second time, a Original Suit No. 432 of 2007 Sh. Vineet Kumar Jain vs. Smt. Archana Garg was filed by the appellant seeking divorce (for short "the divorce suit"). In the original Suit on 13.02.2008 parties entered into a compromise and it was decided accordingly. One of the terms of the compromise was that the appellant would not sell his house no. 37 B, Narendra Vihar Extension, Dehradun (for short "the house"). The respondent along with the family will reside in the house. The children are staying with the respondent in the house. The suit was filed by the respondent on the ground that in defiance to the terms and condition of the compromise entered in the divorce suit, the appellant intends to evict her from the house and is planning to induct some gunda element in it. In the plaint of the suit, various other allegations with regard to conduct of the appellant have also been narrated by the respondent. The appellant filed written statements. According to him, it is the respondent, who violated the terms and conditions of the compromise. Pleadings were exchanged. Plaint in the suit was amended.

3. On 23.04.2010 four issues were framed and again on 16.12.2010 five more issues were framed in the suit. The issues need not be reproduced here. Issue no. 3 is very important. It is with regard to the effect of violation of terms of the consent decree, passed in the divorce suit. Parties led evidence. By the impugned judgment and order, the suit has been decreed and the appellant has been restrained by permanent injunction not to evict the respondent from the house and also not to sell or induct any other person in the house. Aggrieved, the instant appeal.

4. Heard learned counsel for the parties and perused the record.

5. At the very outset it may be mentioned that the divorce suit no. 432 of 2007 was second divorce suit filed by the appellant. After filing of the suit, the appellant filed third Divorce Suit No. 238 of 2008 seeking dissolution of marriage or judicial separation. By the judgment and decree passed in the third divorce suit dated 06.08.2013 a decree of judicial separation was granted. This decree of judicial separation was challenged by both the parties. The appellant wanted dissolution of marriage, whereas, the respondent was aggrieved by passing of the decree of judicial separation. By a separate judgment and order passed earlier today, in First Appeal No. 122 of 2013, this Court allowed the appeal, filed by the respondent and set aside the judgment and decree dated 06.08.2013 passed in third divorce suit No. 238 of 2008.

6. The suit was filed on the strength of compromise entered into between the parties. It is a consent decree. The divorce suit was decided on the basis of compromise. During the course of argument, in the instant appeal, a question was raised about the effect of decree passed in the Original Suit No. 432 of 2007 to the effect as to what would be the effect of consent decree passed in Original Suit No. 432 of 2007.

7. On behalf of the appellant, it is argued that it is the respondent, who violated the terms and conditions of the consent decree; the appellant never tried to evict the respondent, therefore, there is no cause of action; a separate suit, cannot be filed for the execution of consent decree.

8. On behalf of the respondent learned counsel would fairly concede that the consent decree is binding.

9. The instant appeal is being decided simply on the basis of the effect of the consent decree passed in Original Suit No. 432 of 2007. Although there are various other issues, which have been framed in the suit but they do not appear to be necessary for decision of this appeal. A brief mention may be made here that issue no. 6 has been framed to the effect as to whether respondent has been treated with cruelty by the appellant and while recording the finding on it, the learned court below though quoted as to what the respondent has stated but did not deduce anything. Simply in para no. 28, it is recorded that this issue no. 6 has been proved by the respondent. How and why it has been proved, is not elaborated.

10. The effect of consent decree passed in Original Suit No. 432 of 2007 is a pure legal issue. Both the learned counsel have advanced their arguments.

11. A suit may be decided on the basis of compromise between the parties. Rule 3 order 23 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") stipulates it as hereunder:-

"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 in 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 no 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."

12. Rule 3 of order 23 of CPC is in two parts. It has been discussed in details in the case of Pushpa Devi Bhagat vs. Rajinder Singh and Others MANU/SC/3016/2006 : (2006) 5 SCC 566. The Court held that "the first part provides that where it is proved to the satisfaction of the court that a suit has been adjusted wholly in part by a lawful agreement or compromise in writing and signed by the parties, the court shall order such agreement and compromise to be recorded and shall pass a decree in accordance therewith" and it was further held that "where the matter falls under the first part, there is a promise or promises agreed to be performed or executed, and that can be enforced by levying execution."

13. In the case of Uma Shanker (Dead) and others vs. Sarabjeet (Dead) By LRS. and others MANU/SC/0270/1996 : (1996) 2 SCC 371 after a consent decree possession was given to the decree holder but again he was dispossessed. He filed a suit to get the possession of it. The Hon'ble Court held that It was his dispossession thereafter which gave rise to the next round of litigation. Such litigation is not barred under Section 47 of the Civil Procedure Code. Section 47 bars a separate suit only in respect of questions relating to the execution, discharge or satisfaction of the decree."

14. In the case of Tulsan vs. Pyare Lal and Others MANU/SC/4376/2006 : (2006) 10 SCC 782 a suit was decided on the basis of compromise. On this basis, the name was to be recorded in the revenue record. When the revenue authorities did not respect to the consent decree, a separate suit for declaration was filed. The Hon'ble Court, inter-alia, held that "A consent decree, it is trite, remains valid unless it is set aside. It would be binding on the parties. Although, the principles of res judicata stricto sensu would not apply, the principles of estoppel would"

15. In the case of Tulsan (supra) the Hon'ble Court further held as hereunder:

"16. Submission of the learned counsel for the respondents that the suit for declaration had to be filed in view of refusal on the part of the Revenue Authorities to mutate their names may not be correct as keeping in view the provisions contained in Section 47 of the Code of Civil Procedure, a subsequent suit was clearly barred. The consent decree was also binding on the Revenue Authorities. The respondents also could initiate a proceeding for preparation of final decree. They could also have filed an appropriate application for measurement of the land and delivery of possession pursuant thereto. But, by no stretch of imagination, could a second suit be held to be maintainable."

16. There is one more important Rule. It is Rule 3A of Order 23 of CPC, which bars a fresh suit. It reads as hereunder:-

"3-A. 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."


17. Initially, the suit was filed by the respondent merely on the strength of consent decree passed in the divorce suit. Subsequently, various things were stated in the plaint regarding conduct of the parties as well as arrangement of consideration money for the purchase of the house. The suit was not filed claiming herself owner of the house by the respondent. It is important to note that the initial objection of the appellant was also to the effect that terms and conditions of the consent decree passed in Divorce Suit No. 432 of 2007 had been violated by the respondent. In fact, on 04.10.2008 the appellant informed the Court that he has no intention to evict the appeal. It has been recorded in the order sheet dated 04.10.2008 of the suit.

18. The settled legal position, as discussed hereinabove, is that the consent decree is binding. It is an agreement between the parties with the approval of the Court. It may not act as res-judicata but it acts as estoppel. If for the enforcement of a consent decree, a separate suit is permitted to be filed, it will give rise to the multiplicity of the suit. It would be against the intention of the legislature as embodied under Order 23 Rule 3A of CPC. The suit, as such, is not maintainable. The decree passed in Divorce Suit No. 432 of 2007 dated 13.02.2008 is binding upon both the parties. In case of any violation, the Court, which passed the decree, may be moved by the aggrieved party. In case of defiance, the party, effected thereby, may file an execution proceeding. In such execution proceedings definitely all the questions relating to execution, discharge and satisfaction of decree shall be determined. Therefore, while holding that the consent decree passed in Original Suit No. 432 of 2007 has binding effect and no separate suit can be filed to enforce it, this Court is of the view that the suit is not maintainable to enforce the consent decree and accordingly, the suit ought to have been dismissed on this ground alone. Therefore, the appeal deserves to be allowed.

19. With the above observation, the appeal is allowed. The judgment and decree passed in Original Suit No. 191 of 2008, Smt. Archana Garg vs. Sh. Vineet Kumar Jain is hereby set aside.

20. No orders as to costs.

21. Let a copy of the judgment along with the original record be sent to the learned court below.


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