Is the application for plaint of rejection is maintainable if the separate suit is filed challenging the consent decree?

 10.3 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.

11. If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum-DGPA, the said reliefs can be granted only if the Compromise Decree dated 13.01.2016 passed in O.S. No.1750 of 2015 is set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever drafting wants to get his suit maintainable, which otherwise would not be maintainable questioning the Compromise Decree. All the aforesaid reliefs were subject matter of earlier suits and thereafter also subject matter of

O.S. No.1750 of 2015 in which the Compromise Decree has been passed. Therefore, it is rightly held by the Trial Court that the suit in the present form and for the reliefs sought would be barred under Order XXIII Rule 3A CPC and therefore the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. The High Court has erred in

setting aside the said order by entering into the merits of the validity of the Compromise Decree on the ground that the same was hit by Order XXXII Rule 7 CPC, which was not permissible at this stage of deciding the application under Order VII Rule 11 CPC and the only issue which was required to be considered by the High Court was whether the suit challenging the Compromise Decree would be maintainable or not.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 439 OF 2022

M/s. Sree Surya Developers and Promoters Vs N. Sailesh Prasad 

Bench: M.R. SHAH; SANJIV KHANNA, JJ.

Dated: FEBRUARY 09, 2022

Author: M.R. SHAH, J.

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Whether the court can permit modification or alteration of consent decree?

  A consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. The Court in exercise of its inherent power may rectify the consent decree to ensure that it is free from clerical or arithmetical errors so as to bring it in conformity with the terms of the compromise. Undoubtedly, the Court can entertain an Application under Section 151 of the CPC for alterations/ modification of the consent decree if the same is vitiated by fraud, misrepresentation, or misunderstanding Though, the High Court dismissed the Application by refusing to entertain the Application on the ground that it was filed under Section 152 of the CPC, we have considered the submissions of the parties to examine whether the Appellant has made out a case for modification of the decree by treating the Application as one under the proviso to Order 23 Rule 3 read with Section 151 of the CPC. There is no allegation either of fraud or misrepresentation on the part of the Respondent. We are unable to agree with the Appellant that there was a mistake committed while entering into a settlement agreement due to misunderstanding. Correspondence between the advocates for the parties who are experts in law would show that there is no ambiguity or lack of clarity giving rise to any misunderstanding. Even assuming there is a mistake, a consent decree cannot be modified/ altered unless the mistake is a patent or obvious mistake. Or else, there is a danger of every consent decree being sought to be altered on the ground of mistake/ misunderstanding by a party to the consent decree. {Para 13}

Supreme Court

JUSTICE L. NAGESWARA RAO JUSTICE B.R. GAVAI

Ajanta LLP Vs. Casio Keisanki Kabushiki Kaisha d/b/a Casio Computer Co. Ltd. & Another

Civil Appeal No. 1052 of 2022

4th February 2022

Author: L. NAGESWARA RAO, J.

Citation: 2022 ALL SCR (ONLINE) 123

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Whether Married Hindu Woman can give property that she has inherited from her husband in Family Settlement to her brothers' children?

Reverting to the facts of the present case,

admittedly, the defendants-respondents were nephews,

i.e., brother’s sons of Smt. Jagno. We need to look

into the Hindu Succession Act, 1956, Section 15,

which deals with the general rules of succession in

the case of female Hindus for properties inherited by

female Hindus, which are devolved in according to

Sections 15 and 16. Section 15(1), which is relevant

is as follows:-

“15. General rules of succession in the

case of female Hindus.—(1)The property of

a female Hindu dying intestate shall

devolve according to the rules set out in

section 16,—

(a) firstly, upon the sons and daughters

(including the children of any predeceased

son or daughter) and the husband;

(b) secondly, upon the heirs of the

husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the

father; and

(e) lastly, upon the heirs of the mother.”

27. A perusal of Section 15(1)(d) indicates that

heirs of the father are covered in the heirs, who

could succeed. When heirs of father of a female are

included as person who can possibly succeed, it

cannot be held that they are strangers and not the

members of the family qua the female.

28. In the present case, Smt. Jagno, who as a widow

of Sher Singh, who had died in 1953, had succeeded to

half share in the agricultural land and she was the

absolute owner when she entered into settlement. We,

thus, do not find any merit in the submission of

learned counsel for the appellants that the

defendants-respondents were strangers to the family.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5167 of 2010

KHUSHI RAM Vs NAWAL SINGH 

Author: ASHOK BHUSHAN, J.

Dated: February 22, 2021.

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Whether consent decree will operate as estoppel if fraud, misrepresentation, or mistake vitiate compromise?

This Court’s Analysis

18. Before adverting to the specific contentions raised by the

learned senior counsel for the Petitioner, it may be useful to briefly summarise the law governing consent decrees that shall inform our conclusions on the present matter. It is well settled

that consent decrees are intended to create estoppels by judgment against the

parties, thereby putting an end to further litigation between the

parties. Resultantly, this Court has held that it would be slow to

unilaterally interfere in, modify, substitute or modulate the terms of

a consent decree, unless it is done with the revised consent of all

the parties thereto. (Gupta Steel Industries v. Jolly Steel

Industries Pvt. Ltd. & anr., (1996) 11 SCC 678; Suvaran

Rajaram Bandekar & ors. v. Narayan R. Bandekar & ors.,

(1996) 10 SCC 255).

19. However, this formulation is far from absolute and does not

apply as a blanket rule in all cases. This Court, in Byram Pestonji Gariwala v. Union Bank of India & ors., (1992) 1 SCC 31, has held that a consent decree would not serve as an estoppel, where

the compromise was vitiated by fraud, misrepresentation, or

mistake. Further, this Court in the exercise of its inherent powers

may also unilaterally rectify a consent decree suffering from clerical

or arithmetical errors, so as to make it conform with the terms of

the compromise.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NOS. 2224-2225

OF 2021

COMPACK ENTERPRISES INDIA (P) LTD.  Vs BEANT SINGH 

Author: MOHAN M. SHANTANAGOUDAR, J. 

Dated: FEBRUARY 17, 2021

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Whether the court can extend the time granted to a party in the consent decree to perform an act?

 Learned counsel for the judgment debtors has heavily relied on the decision of the Supreme Court in Periyakkal (supra) wherein based on the compromise between the parties, the appellants therein agreed to pay a certain sum to the respondent therein within a stipulated time in full and final settlement of the decree, time being the essence of the agreement. Though the High Court dismissed the application holding that the Court could not extend the time where time had been stipulated by the parties themselves in the compromise, Supreme Court held that where the contract between the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would not stand curtailed. It was also clarified that time should not be extended ordinarily and on mere asking but in rare cases to prevent manifest injustice. Therefore, the Supreme Court in Periyakkal clearly held that the Court may in its discretion, in the interest of justice extend the time of payment however, the same should not be extended ordinarily on the mere asking but in rare cases to prevent manifest injustice.

 IN THE HIGH COURT OF DELHI

EX.P. 71/2019, E.A. (OS) 394/2019 

Decided On: 23.09.2020

Neena Khatry Vs. Varun Moudgil and Ors.

Hon'ble Judges/Coram:

Mukta Gupta, J.

Citation: MANU/DE/1763/2020

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Whether a husband can enforce consent decree passed by Lok Adalat in which wife has waived her right to claim maintenance?

The consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super-added to them. Accordingly, if the term of the contract is itself opposed to public policy then, such term, is void and unenforceable. If the term is severable then, only the term can be declared as void. If the term is not severable, then, perhaps, the entire contract may fall.

13. There are several rulings, which take the view that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable. The two courts in the present case have basically relied upon such rulings and held that even if it is assumed that the parties had voluntarily agreed to give up their time to claim maintenance from each other, such agreement is opposed to public policy and, therefore, the same is not enforceable, or the same does not bar the maintainability of an application under Section 125 of Cr.P.C. There is no jurisdictional error in the view taken by these two courts so as to warrant interference under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3439 of 2016

Decided On: 21.12.2018

Ramchandra Laxman Kamble  Vs.  Shobha Ramchandra Kamble and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

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What remedy is available against consent decree to an aggrieved third party?

Still there could be one more situation, where the third party who was not the party to suit or the party to the compromise but had an interest in the subject matter of the compromise, is aggrieved by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit. So what remedy would be available to him? It cannot be gainsaid that the decree based on the compromise between the parties under Order XXIII, Rule 3, if remains unchallenged would be a "consent decree" binding to the parties to suit. However, when the person aggrieved is third party who was neither a party to the suit nor a party to the compromise on the basis of which the decree was passed by the Court in the suit, would not be bound by such decree. Such a decree could not be said to be a "consent decree" qua such third party, and therefore, neither the bar contained in Section 96(3) nor the bar under Rule 3A of Order XXIII would be application to him. Such an aggrieved party, with the leave of the Court can always file an appeal under Section 96(1) against the decree passed by the Court on the basis of the compromise, and can contest the decree on the ground that the compromise should, or should not have been recorded by the Court in view of Rule 1A(2) of Order XLIII of CPC. When the third party is vitally and adversely affected by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit on the subject matter or otherwise of the suit, he can certainly, with the leave of the appellate Court, prefer an appeal and can contest such a decree passed under Order XXIII, Rule 3. One of the grounds to contest the decree could be that such a compromise should or should not have been recorded by the Court.

31. At this juncture, the word "party" used in Sub-rule (1) and the word "appellant" used in Sub-rule (2) of Rule 1A of Order XLIII assume importance. The Sub-rule (1) of Rule 1A relates to the order passed against the 'party' to the suit, and the appeal filed by 'such party', whereas the Sub-Rule (2) of the said Rule 1A relates to the appeal filed by the 'appellant'. Such appellant may or may not be a party to the suit. The Sub-rule (2) is not confined to the appeal filed by the "party" to the suit. Hence, the third party, in the appeal against the decree passed in the suit under Rule 3 of Order XXIII can also contest such decree on the ground that such a compromise should not have been recorded.

32. In the opinion of the Court, such an aggrieved third party would also have an option to file an application for Review of the order recording the compromise or for Review of the decree based on the compromise between the parties to the suit, under Section 114 read with Order XLVII, Rule 1 of CPC, if the conditions precedent mentioned therein are satisfied. It has been held by the Supreme Court in case of Board of Control for Cricket, India Vs. Netaji Cricket Club, reported in MANU/SC/0019/2005 : AIR 2005 SC 592, that an application for Review under Order XLVII Rule 1 would be maintainable not only upon discovery of a new and important piece of evidence, or when there exists an error apparent on the face of record but also if the same is necessary on account of some mistake or for any other sufficient reason. What would constitute sufficient reason would depend upon facts and circumstances of each case. The words "sufficient reason" in Order XLVII, Rule 1 are wide enough to include a misconception of fact or law by a Court or by an advocate. An application for review may be necessitated by way of invoking he doctrine "actus curiae neminem gravabit", which means that the act of the Court shall prejudice no one. Therefore, it any person considers himself aggrieved by the order or decree passed under Order XXIII, Rule 3 may for sufficient reason apply for review of such decree or order under Order XLVII, Rule 1, subject to the conditions mentioned therein. When an application for review is granted, the Court may at once re-hear the case or make such order in regard to the rehearing as it thinks fit, as contemplated in Rule 8 of Order XLVII of CPC.

 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.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Appeal from Order No. 33 of 2017,

Decided On: 28.08.2019

 Sakina Sultanali Sunesara (Momin) Vs.  Shia Imami Ismaili Momin Jamat Samaj 

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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

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Whether breach of undertaking given in consent decree amounts to contempt of court?

Mr. Nedumpara, learned Counsel for the Respondents, argues that the order passed by this court on 27 September 2012 is a consent order. Learned Counsel submits that a consent order merely records an agreement between the parties. Learned Counsel submits that merely because in its body, the word 'undertaking' is included, the order does not undergo any change; it is still a consent order passed on a compromise between the parties. Learned Counsel submits that no contempt can be alleged of any such order; such order can only be executed by the court. This controversy has finally been laid to rest by the Supreme Court in case of Rama Narang Vs. Ramesh Narang MANU/SC/1960/2006 : (2006) 11 Supreme Court Cases 114. The definition of civil contempt under Section 2(b) of the Contempt of Courts Act, 1971, as noted by the court in that case, provides for two categories of cases, first, any willful disobedience to a process of court, and second, any breach of an undertaking given to a court. The Supreme Court held that the word 'any' indicated the wide nature of the power. No distinction could be statutorily drawn in this behalf between an order passed after adjudication and an order passed by consent. Any wilful violation of any order or decree would be tantamount to contempt. A compromise decree or order is as much a decree or order as a decree or order passed on adjudication, and not merely an agreement between the parties; in passing a decree by consent, the court adds its mandate to the consent so that the consent decree may be said to be composed of both command and contract. A consent decree, in other words, is a contract with the imprimatur of the court added to it. By passing a decree in terms of consent terms, the court authorises and approves the course of action consented to. Just as an order or decree passed on adjudication is executable under the Code of Civil Procedure, even a consent order or decree is of course executable, but merely because of that, it does not take away the jurisdiction of the court to deal with its violation or breach under the Contempt of Courts Act, provided the court is satisfied that the violation or breach complained of is such as would warrant a punishment under Section 13 of that Act. The present consent order is no different. Besides, the breach alleged in the present case is not merely of the consent order, but of an express undertaking given to the court and which was recorded and accepted by it in the consent order. A willful breach of an undertaking given to a court clearly and unequivocally attracts its contempt jurisdiction.

IN THE HIGH COURT OF BOMBAY

Contempt Petition No. 29 of 2016 in Suit No. 2503 of 2012

Decided On: 31.10.2018

 Swaranjeet Singh  Vs.  Melco Technologies India Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2019(2) MHLJ 277

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Whether it is necessary to pay stamp duty on consent decree?

 Whether, consent decree which transfers immovable property was "conveyance" within the meaning of Section 2(g) of the Act before its amendment - Held, relying on State of Mah. and Ors. v. M.S. Builders (Private) Limited, definition of conveyance even before its amendment would include consent decree which fulfils all requisites of conferring right, title and interest in favour of vendees - Admittedly consent decree conveyed property - Therefore, such consent decree would be liable to stamp duty under Entry 25 of Schedule I of the Act."Persons shall be liable to pay stamp duty on consent decree if confers right, title and interest in favour of vendee."

IN THE HIGH COURT OF BOMBAY

W.P. No. 939 of 2007

Decided On: 22.08.2007

Peacebird Premises Co-op. Society Ltd. Vs. Collector of Stamps of Mumbai and Ors.

Hon'ble Judges/Coram:

F.I. Rebello and J.P. Devadhar, JJ.

Citation: 2008(1) MHLJ 865

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When right in property acquired by Hindu female by compromise decree will not enlarge into full right?

It is an admitted position that on 23.12.1932 a compromise decree was passed in a suit filed by predecessors of the defendants against the predecessors of the plaintiffs. In terms of the compromise decree, the sons of Har Narain who were predecessors-in-interest of the plaintiffs agreed to give limited possessory rights to the predecessor of the defendant, namely, Sheo Lal.

In terms of the compromise, the consent decree was passed holding that "during the lifetime of Sheo Lal, he will not be entitled to sell or mortgage his property in any case", thereby meaning that Sheo Lal merely got restrictive possessory rights in terms of the decree dated 23.12.1932 passed by the District & Sessions Judge, Hissar.

Further, it categorically provided that the suit property was to revert to the predecessors of the plaintiffs in case the widow predeceased Sheo Lal and in case Sheo Lal predeceases the widow, the widow shall be entitled to use the same during her life time. Thereafter, the suit property will revert to the predecessors of the plaintiff. It is thus clear that Sheo Lal was given a limited right in respect of the suit property. Sheo Lal died in the year 1961. Chimmli, wife of Sheo Lal died in 1976.

12. The suit was filed primarily on the ground that neither Sheo Lal nor his widow had any pre-existing right in the suit land since their rights flow from the compromise decree. After the death of Smt. Chimmli, the plaintiffs were entitled to the possession of the land. It is clear that Sheo Lal was granted limited right not in recognition of his pre-existing right. Section 14(1) of the Act does not recognize the pre-existing right of a male Hindu. The suit property never became the self acquired property of Sheo Lal. Even his widow Chimmli did not hold the land in lieu of maintenance which can be enlarged into full ownership by virtue of Section 14(1) of the Act. The estate was conferred on Chimmli by virtue of the decree which created a new right. There were no pre-existing rights of either Sheo Lal or his widow Chimmli. The property in her hands came as a result of she being a successor of Sheo Lal. Smt. Chimmli would not have acquired a better right than Sheo Lal in the suit property. The rights of Sheo Lal as well as Smt. Chimmli flow from the consent decree.

13. In Tulasamma (supra), this Court has held that Hindu women's right to maintenance is the personal obligation so far as the husband is concerned and it is the duty to maintain her even if he has no property. The right to maintenance is a pre-existing right. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. It was further held that the claim for the right to maintenance possessed by a Hindu family is legally a substitute of a share which she would have got in the property of her husband.

14. In the instant case, there is nothing on record to show that the property in the hands of Chimmli came in lieu of maintenance or on account of arrears of maintenance. The property in her hands came as a result of she being a successor of Sheo Lal. Sheo Lal did not possess any property. He had only life interest in the property which did not enlarge into a full right because Section 14(1) does not recognize the pre-existing right of a Hindu male. Smt. Chimmli could not have acquired a better right than her husband had in the property in dispute. Right of Sheo Lal, as also Smt. Chimmli, flows from the decree. Therefore, her right would not mature into full-fledged ownership by virtue of Section 14(1). She has acquired the right by virtue of the compromise decree for the first time. Therefore, Section 14(2) would apply to the instant case.

SUPREME COURT OF INDIA

Basanti Devi (D) by LRS. & Ors Vs. Rati Ram & Ors.

[Civil Appeal No.7919 of 2011]

S.ABDUL NAZEER, J.

DATED: 8 MAY 2018
Citation: (2018) 16 SCC 608

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Notes on Civil appeal

APPEALS FROM ORIGINAL DECREE: S 96-99A .Order 41 of CPC.

The word appeal has not been defined in the code. The term refers to the removal of cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus a remedy provided by law for getting the decree of lower court nullified, and is in fact,a complaint made to a higher court that the decree of lower court is unsound and wrong. An appeal must be preferred against

the whole decree and not any item or items in it. An appeal is only a continuation of original proceedings and it is a stage in the suit itself.

S 96 of CPC lays down four primary rules regarding appeals from original decree as follows:

1) Unless otherwise provided, an appeal lies from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from decisions of such a court.

2) An appeal can be even from an exparte decree.

3) However,no appeal lies from a consent decree.

4) Except on a question of law,no appeal lies from a decree in any suit cognizable by a small causes court,if value of subject matter of original suit does not exceed Rs. Ten Thousand.

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Whether wife can be imprisoned if she fails to obey decree for restitution of conjugal rights?

There is another way of looking into the matter. The consent terms on
which the parties settled the matter contained an important part of
agreement, namely, both the parties decided to live together again. This
happened in the proceedings which essentially related to the custody of
child. No doubt, when the parties agreed to resume the matrimonial
relations and decided to live again as husband and wife, the problem of
custody of Pranav got automatically solved thereby as it brought about
an ideal situation where Pranav could have the company of his both the
parents. Unfortunately, this did not materialise. In a case like this
whether the High Court could force the appellant to join the company of
the respondent and live with him, if he had decided for certain reasons
not to do so? Even when a decree of conjugal rights is filed by a
competent court of law in favour of one of the spouses, such a decree
cannot be executed and the other spouse who is directed to resume the
conjugal relations, cannot be forced to do so. It is a different matter that
for not obeying such a decree, other consequence follow including right
to the decree holder to seek divorce. When that is the position even in
respect of a decree passed by competent court of law forcing the
appellant to join the company of the respondent and on her failing to do
so punishing her in committing contempt of the court’s order, that too by
awarding maximum civil imprisonment in law cannot be countenanced.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1606 OF 2018
MEENAL BHARGAVA  V NAVEEN SHARMA 
A.K.SIKRI, J.
Dated:MAY 09, 2018.

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Whether principle of Res judicata is applicable to consent order?

A relief if it is not granted or if the judgment is silent regarding a particular relief; it is, both, in accordance with the principle of res judicata enumerated in Section 11 of the Code of Civil Procedure and also in accordance with general principle of res judicata, which, undoubtedly, applies to writ petitions also; it must be taken to have been impliedly refused and the bar of res judicata applies. In this case, the reasoning given by the Court would leave us in no doubt that the Court was not inclined to grant the relief as sought for. In fact, the Court had disposed of the writ petition in terms of the earlier judgment, wherein the Court had closed the matter.

52. That was a case, where there was a decision by the court on merits and not on consent and a particular prayer was refused by implication and, hence, it was held to be res judicata; but, in this case, we have first of all noticed that there is no decision. While Section 11 of the Code of Civil Procedure as such is not applicable to Article 226 and Section 11 only recognizes certain basic principles about the doctrine of res judicata, it is necessary to advert to the scheme of Section 11. In our view, the purpose appears to be to preclude the court from hearing the matter, which was directly and substantially in issue in a former proceeding between these parties, which was heard and finally decided by the said court. The Explanations intend to both clarify and enlarge the scope of the provision. An instance of enlarging the scope of the main provision is contained in Explanation IV, which provides that a matter, which might and ought to have been made ground of defence or attack in a former suit, is to be treated as a matter, which was directly and substantially in issue in the suit. Equally Explanation V also purports to deal with the case, where, though the court has neither granted nor refused expressly a relief, which was sought in the earlier suit, the law deems that in the case of silence in the matter the relief was refused. Explanation IV sets out the principle of constructive res judicata. We would think that, while it does expand the principle of res judicata; in that, a matter, which was not decided actually, is still regarded as barred by res judicata though it was not expressly finally decided by the court, it cannot apply to a case, where there is only a consent decree. This is for the reason that, running as a golden thread through the provisions, is the principle that the earlier suit must have been decided finally on merits. If a matter is heard and finally decided, then, provided the conditions are otherwise satisfied, a matter, which could have been raised by the plaintiff or by the defendant (ground of defence or attack), would be deemed to have been decided. This salutary principle is intended to advance the cause of justice by preventing parties from omitting or refusing to take up all the contentions, which they ought and might have taken. This principle, itself, is undoubtedly subject to many limitations, which, for a decision in this case, need not detain us. Suffice it to say, as already noticed, we cannot allow it to be invoked by the respondents in a case, where the earlier case itself was not finally heard and decided; but, instead, it was disposed of on consent.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Special Appeal No. 14 of 2015

Decided On: 12.05.2017

 Rajesh Goyal and Ors. Vs. State of Uttarakhand and Ors.

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Whether court can extend time for payment of consideration amount in execution of consent decree?

 In the present case, there was a decree for a sum of Rs.1,04,50,000/-. On the judgment debtor's application, by consent of parties, a concession was granted to the judgment debtor to pay an amount of Rs.90,00,000/- in two instalments of Rs.45,00,000/- each in full and final settlement of the Plaintiff's claim. On failure of such payment, the order provided for the entire decretal amount becoming due and the decree being liable to be executed on that basis. The case clearly comes within the dicta of the Full Bench judgment of our court in the case of Waman Vishwanath. A clause providing for execution of the decree for the entire decretal amount on failure of payment of a concessional amount within a stipulated time is not in the nature of penalty or forfeiture and there is no question of this court relieving the judgment debtor of its consequences. Mr.Cama tries to distinguish the consent order in the present case as an order providing for payment of a larger amount in default of payment of the decretal sum in instalments. The submission is that the original decree was set aside and substituted by a decree for payment of a smaller sum and in default, for payment of the larger sum, i.e. the original decretal sum. The suggestion seems to be that to come within the principle of Waman Vishwanath, the original decree had to be retained and its satisfaction had to be provided in terms of payment in instalments of a lesser sum (i.e. the concessional sum). This is nothing but a matter of semantics. In substance, the original decree is given a go by only on the basis of a concessional payment, failure of such payment resulting into an entitlement to execution of the decree already passed, and that cannot be termed as a penalty or a forfeiture. The application for extension of time is, accordingly, rejected.

Bombay High Court

Sonal Deepak Shah vs Rachna Developers And Marketing ... on 30 August, 2016

Bench: S.C. Gupte

Citation:2016(6) ALLMR 222

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Whether tenant can challenge consent decree passed against him?

Coming to the decision of this Court in Smt. Nai
Bahu v. Lala Ramnarayan and others (1978) 1 SCC 58,
all that this Court held is that a landlord whose right to
seek the eviction of his tenant is restricted by a statute (to
the grounds specified in the statute) cannot successfully
evict the tenant only on the basis of a compromise decree
passed in a suit for eviction of the tenant. Apart from the
consent of the tenant, one of the statutorily stipulated
grounds rendering the tenant liable for eviction must
necessarily exist for the validity of such a decree. In other
words, this court held that a tenant who suffered a consent
decree can still raise a question that none of the statutory
conditions existed which render him liable for eviction
when the consent decree came to be passed.
27.In the case on hand the tenant was clearly in arrears
of the rent which fact is acknowledged by the compromise
memo signed by the tenant which was incorporated in the
decree. Looked at any angle, we are not able to agree

with the judgment under appeal, nor able to sustain the
executing court’s order dismissing the landlord’s execution
petition.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 52 OF 2014

Shivshankar Gurgar V Dilip 

Chelameswar, J.

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Whether breach of undertaking given in consent decree amounts to contempt of court?

The depth of the solemn aspect of an undertaking given to Court has been considered since the case of Bajranglal Gangadhar Khemka and Anr. v. Kapurchand Ltd. MANU/MH/0014/1950 : AIR 1950 Bom 336, in the Division Bench judgment of Justice Chagla C.J and Gajendragadkar, J., as they then were. The giving of the undertaking in all orders and decrees of Court has been considered to mean an undertaking given to the Court. It is observed that the expression " a party undertakes" has borne the meaning that the undertaking has been to the Court.

That was a suit of specific performance of a contract. The Plaintiffs had an option to purchase the leased property which was sought to be sold to another without giving them the option. The parties compromised the action and executed Consent Terms. The Defendants were to execute a lease in favour of the Plaintiffs. The Defendants undertook to have the 3rd party joined as a confirming party to the lease and failed to execute the lease as agreed upon. The Plaintiffs called upon the Defendants to join the 3rd party as such and upon failure of the Defendants sued on contempt. The learned single Judge Bhagwati, J., as he then was, held that there was a willful default on the part of the Defendants, and ordered them to carry out the undertaking within one monthfrom the date of the order, failing which a warrant for committal of the Defendants to prison would be issued. It was contended on behalf of the Defendants that the undertaking was a mere solemn promise given to the Plaintiffs and that there was no undertaking to the Court such as to constitute contempt. Negativing that contention it was held by the Division Bench that there was no reason why even in a Consent Decree a party may not give an undertaking to the Court. It was observed that when the Court passed a decree it puts its imprimatur upon those terms and makes the terms a rule of the Court. It was, therefore, held that there was nothing contrary to any provision of law whereby an undertaking cannot be given by a party to the Court in a Consent Decree, which undertaking can be enforced in proper committal proceedings. It was observed that when an undertaking is given by a party to the Court, it becomes an order of the court and a particular mode is prescribed for enforcement of that particular order. That mode is the proceedings for contempt for enforcement of the order. The fact of giving of an undertaking to Court can be seen by looking at the Consent Decree itself. The Court considered the scheme of the agreement containing the undertaking and confirmed the order of the learned single Judge in directing compliance of the undertaking and dismissed the Appeal upholding the order of committal in case of its failure.

29. In a later short and concise judgment of the Supreme Court in the case of Chhaganbhai Norsinbhai v. Soni Chandubhai Gordhanbhai MANU/SC/0078/1976 : (1976) 2 S.C.C. 951, again held that willful breach of an undertaking given to the Court amounted to its contempt.

In that case the Defendant undertook to the Court to handover the keys of the premises and vacate the premises within a specified time. He further undertook to pay manse profits and not part with its possession. Upon his failure, the Court observed that the order passed upon the undertakings would not be a mere Consent Order. It would be a case of express undertakings to the Court incorporated in that order. The contention on the part of the Contemnor that there was no breach of an undertaking and that it was a mere agreement between the parties to which an order of the Court has been appended was rebuked and rejected. The Supreme Court agreed with the High Court that it was a perverse and deliberate flouting of undertakings given by a litigant who, evidently, had no intention to abide by them. It was observed that the undertakings seemed to have been taken very lightly as mere cloaks for obtaining an order which would not have been passed, but for the undertakings. Hence the order of the High Court to convict the contemnor and sentence him to Civil jail was upheld observing from Halsbury's Laws of England - Fourth Edn. Vol. 9, page 44 (para 75) deals with the aspect of giving undertakings thus:

An undertaking given to the Court by a person or corporation in pending proceedings, on the faith of which the court sanctions a particular course of action or inaction, has the same force as an injunction made by the Court and a breach of the undertaking is misconduct amounting to contempt.

This has been cited with approval in the case of Chhaganbhai Norsinbhai v. Soni Chandubhai Gordhanbhai MANU/SC/0078/1976 : (1976) 2 S.C.C. 951.

30. Since any undertaking in any Consent Order is to be read as an undertaking given to the Court (Per Chagla C.J.) in the case of Bajranglal (Supra) breach of such undertaking was held to enable an application for contempt to be made.

31. The case of Bajranglal (supra) has been followed with approval by the Supreme Court in the case of Bank of Baroda v. Sadruddin Hasan Daya and Anr. MANU/SC/1031/2003 : (2004) 1 SCC 360, holding that:

The violation or breach of the undertaking which became part of the decree of the court certainly amounts to contempt of court, irrespective of the fact that it is open to the decree holder to execute the decree. Contempt is a matter between the court and the alleged contemnor and is not affected in any manner by the rights or obligations of the parties to the litigation inter se.

The underlying concept was that it was not only a case of an agreement between the parties. The Court refraining from passing its own order shows its profundity so as to clothe it with the same power as would be of an order of the Court itself.

Equivalent Citation : 2011 (7)ALLMR 212

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5394 of 2010 and Civil Application No. 2974 of 2010

Decided On: 11.02.2011

 Sanjay Angad Chaddah Vs.  Deepa Sanjay Chaddah

Hon'ble Judges/Coram:

R.S. Dalvi, J.

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Whether appeal is maintainable against consent decree?

 Interpreting this provision, the Apex Court in the case of Pushpa Devi Bhagat referred to supra has held as under:

"16. Section 96 provides for appeals from original decrees. Sub-section (3) of section 96, however, provided that no appeal shall lie from a decree passed by the court with the consent of the parties. We may notice here that Order 43 Rule 1 (m) of CPC had earlier provided for an appeal against the order under Rule 3 Order 23 recording or refusing to record an agreement, compromise or satisfaction. But clause (m) of Rule 1 Order 43 was omitted by Act 104 of 1976 with effect from 1.2.1977. Simultaneously, a proviso was added to Rule 3 Order 23 with effect from 1.2.1977. We extract below the relevant portion of the said proviso:

"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"

Rule 3A was also added in Order 23 with effect from 1.2.1977 barring any suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

17. 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) 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.

18. Order 23 deals with withdrawal and adjustment of suits. Rule 3 relates to compromise of suits, relevant portion of which is extracted below:

"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."

The said Rule consists of two parts. The first part provides that 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, the court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. The second part provides that where a defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such satisfaction to be recorded and shall pass a decree in accordance therewith. The Rule also makes it clear that the compromise or agreement may relate to issues or disputes which are not the subject-matter of the suit and that such compromise or agreement may be entered not only among the parties to the suit, but others also, but the decree to be passed shall be confined 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. We are not, however, concerned with this aspect of the Rule in this appeal."

30. From the aforesaid judgment it is clear that the only remedy available to the 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. No appeal is maintainable against the order of the Court recording the compromise or refusing to record the compromise in view of deletion of clause (m) of Rule 1 Order 3 of CPC. The consent decree operates as 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 Order 23 of CPC. Therefore no appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) of CPC.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.F.A. No. 960/2003

Decided On: 31.01.2015

Syed Basheer Malik and Ors. Vs. Jameela Begum and Ors.

Hon'ble Judges/Coram:N. Kumar and B. Veerappa, JJ.

Citation:AIR 2016(NOC)395 KAR

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What will be effect of consent decree on subsequent sale of suit property?

Under the said consent decree, the decree holders had agreed to hand over possession of their plots to the Judgment Debtors. It was agreed that the Judgment Debtors shall provide free of cost on ownership basis an area of 1850 sq.ft. in the proposed building to the decree holders.

Pursuant to the said consent decree, all the pending litigations between the parties including the High Court proceedings were withdrawn as per the terms of the said consent decree.

 In so far as the obstructionists are concerned, they have claimed rights through the Judgment Debtor during the pendency of the execution proceedings filed by the decree holders. It is not in dispute that when the obstructionists claimed their alleged rights from the Judgment Debtor, the Executing Court had already granted injunction against the Judgment Debtor from creating any third party rights. The consent decree was already registered which amounted to public notice.

The obstructionists could not have claimed before the Executing Court that they were bonafide purchasers without notice. The findings by the Executing Court against the obstructionists had attained finality in view of the confirmation thereof by the lower Appellate Court. I have perused the findings rendered by both the Courts below and in my view, there is no perversity in the concurrent findings rendered by both the Courts below and thus cannot be interfered with under section 100 of the Code of Civil Procedure, 1908.

Bombay High Court

Avinash Uttam Kadam vs Smt. Hajira Begum Nisar Ahmad And ... on 9 December, 2015

Bench: R.D. Dhanuka

   SECOND APPEAL (ST.) NO.30922 OF 2015
               Citation;2016(3)ALLMR156

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How consent decree for allotment of alternative accommodation in redeveloped premises is executable?

The question that remains is how can the allotment which was agreed by defendant No.16 to be made be enforced ? The property is not in existence. It is not constructed. It cannot be accepted or concluded that defendant No.16 who is a businessman and who has sought to develop the property would purposely not develop the property because he would want to escape from his liability to allot five flats in the developed property. Hence so soon as the defendant would construct the first five premises (four of which are sought to be executed and enforced aggregating to 4034 sq. ft. of carpet area) the plaintiff Nos. 3, 4 and defendant Nos. 17 and 18 and also Kapurchand H. Jogani & HUF would be entitled to have them allotted to them. Consequently, as justifiably argued by Mr. Madon, the consent terms would become executable when the construction is put up upon redevelopment of the suit property.

26. Once the expression "agreed to allot" is read as an "obligation to allot" the obligation would become executable and enforceable, but only when the premises to be allotted has itself come into existence.

27. It is trite that once an execution application is filed and an attachment is levied it would remain in force until the execution proceeds to the next stage of sale of the property. A decree for specific performance and injunction which is executable by attachment under Order 21 Rule 32 may not only end in sale of the property, but may end in the transfer of the property in favour of the plaintiff or may be enforceable as per the facts of each case. Consequently there would be a legal dilemma of the status of the property; the attachment would continue until the premises are allotted. The premises would be allotted only after they are constructed. The construction cannot be put up if the property is under attachment. Consequently the attachment would lead to nothing. The attachment cannot remain in force endlessly.

The attachment is only an aid to the ultimate execution, be it by sale or by execution of a document or otherwise. The attachment must enure for the benefit of the decree holder, but is not expected to punish the judgment debtor. It is not required to debilitate the business of the judgment debtor; in  fact that would be counterproductive even for the decree holder. Consequently as per the order of the Division Bench of this Court the issue whether the decree is executable or not is to be decided taking into account the practical realities.

28. The decree in terms of the consent terms dated 2 nd December, 2003 under the order of this Court dated 12 th January, 2004 is executable. It can and shall be executed only upon the redevelopment of the suit property by defendant No.16 and by construction of the premises in the redeveloped building. It shall be executed by allotment of the premises constructed to the extent of 1267 sq. ft carpet area in clauses 4(a), 4(b) and 500 sq. ft. carpet area, 4 (d) and 4(e) of the consent terms and further 1267 sq. ft carpet area under clause 4(c ) of the consent terms to the above HUF totalling to 4034 sq. ft. carpet area. Needless to mention that if defendant No.16 constructs premises of a different area and not of area of 1267 sq.ft or 500 sq.ft also plaintiff Nos. 3 and 4 and defendant Nos. 17 and 18 shall be entitled to whatever premises that is constructed, but to the extent of 3534 sq. ft.

carpet area being 1267sq. ft and 500 sq. ft as per clauses 4(a), 4(b), 4(d) and 4(e) of the consent terms and, of course the above HUF would be entitled to 1267 sq. ft. carpet area thus constructed.

Bombay High Court

M/S. Mahendra Builders Pvt. Ltd. & ... vs Smt. Padmabai W/O Ranchhodda V. ... on 27 February, 2015

Bench: R.S. Dalvi

Citation: AIR 2015(NOC)773 BOM

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