Finality of decisions is an underlying principle of all
adjudicating forums. Thus, creation of further litigation should
never be the basis of a compromise between the parties. Rule 3A of
Order 23 CPC put a specific bar that no suit shall lie to set aside a
decree on the ground that the compromise on which the decree is
based was not lawful. The scheme of Order 23 Rule 3 CPC is to
avoid multiplicity of litigation and permit parties to amicably come
to a settlement which is lawful, is in writing and a voluntary act on
the part of the parties.
18. It can be further noticed that earlier under Order 43 Rule
1(m), an appeal which recorded the compromise and decide as to
whether there was a valid compromise or not, was maintainable
against an order under Rule 3 of Order 23 recording or refusing to
record an agreement, compromise or satisfaction. But by the
amending Act, aforesaid clause has been deleted, the result whereof
is that now no appeal is maintainable against an order recording or
refusing to record an agreement or compromise under Rule 3 of
Order 23. Being conscious of this fact that the right of appeal
against the order recording a compromise or refusing to record a
compromise was being taken away, a new Rule 1A was added to
Order 43 which is as follows:“
1A.
Right to challenge nonappealable
orders in appeal
against decree.— (1) Where any order is made under this
Code against a party and thereupon any judgment 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
judgment 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.”
19. Thus, after the amendment which has been introduced,
neither any appeal against the order recording the compromise nor
remedy by way of filing a suit is available in cases covered by Rule
3A of Order 23 CPC. As such, a right has been given under Rule
1A(2) of Order 43 to a party, who denies the compromise and invites
order of the Court in that regard in terms of proviso to Rule 3 of
Order 23 CPC while preferring an appeal against the decree.
Section 96(3) CPC shall not be a bar to such an appeal, because it
is applicable where the factum of compromise or agreement is not
in dispute.
20. In the present case, the partition suit was filed in 1978 and
after the decision of the trial Court, the matter went in first appeal
and eventually, Second Appeal No. 495/86 before the High Court.
During the pendency of first appeal being continuation of the suit
as stated, one of the parties to the pending proceedings, namely,
Sampatiya allegedly entered into a sale deed with the appellant on
6th January, 1984. Indubitably the issue regarding right, title and
interest in respect of the land which was the subject matter of sale
deed dated 6th January, 1984, was still inchoate and not finally
decided. In that sense, the claim of the appellant was to be
governed by the decision in favour of or against Sampatiya in the
pending appeal. It must follow that the alleged transaction effected
in favour of the appellant by a sale deed dated 6th January, 1984
ought to abide by the outcome of the said proceedings which
culminated with the compromise decree passed by the High Court
in Second Appeal No. 495/86 dated 15th September, 1994.
21. Indeed, the appellant was not a party to the stated
compromise decree. He was, however, claiming right, title and
interest over the land referred to in the stated sale deed dated 6th
January, 1984, which was purchased by him from Sampatiyajudgment
debtor and party to the suit. It is well settled that the
compromise decree passed by the High Court in the second appeal
would relate back to the date of institution of the suit between the
parties thereto. In the suit now instituted by the appellant, at the
best, he could seek relief against Sampatiya, but cannot be allowed
to question the compromise decree passed by the High Court in the
partition suit. In other words, the appellant could file a suit for
protection of his right, title or interest devolved on the basis of the
stated sale deed dated 6th January, 1984, allegedly executed by one
of the party(Sampatiya) to the proceedings in the partition suit,
which could be examined independently by the Court on its own
merits in accordance with law. The trial Court in any case would
not be competent to adjudicate the grievance of the appellant herein
in respect of the validity of compromise decree dated 15th
September, 1994 passed by the High Court in the partition suit.
22. In other words, the appellant can only claim through his
predecessorSampatiya,
to the extent of rights and remedies
available to Sampatiya in reference to the compromise decree.
Merely because the appellant was not party to the compromise
decree in the facts of the present case, will be of no avail to the
appellant, much less give him a cause of action to question the
validity of the compromise decree passed by the High Court by way
of a substantive suit before the civil Court to declare it as
fraudulent, illegal and not binding on him. Assuming, he could
agitate about the validity of the compromise entered into by the
parties to the partition suit, it is only the High Court, who had
accepted the compromise and passed decree on that basis, could
examine the same and no other Court under proviso to Rule 3 of
Order 23 CPC. It must, therefore, follow that the suit instituted
before the civil Court by the appellant was not maintainable in view
of specific bar under Rule 3A of Order 23 CPC as held in the
impugned judgment.
REPORTABLE
