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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Under which circumstances separate suit for possession will be barred if third party is dispossessed in execution of decree?

The next limb of the argument based on Rule 99 to Rule 101 of Order 21 C.P.C., is that in a situation contemplated by Order 21, Rule 99, C.P.C., the procedure laid down therein has to be necessarily followed and it is not open to the person dispossessed to file a separate suit in view of the bar contained in Rule 101. In other words, it is contended by the learned counsel for the appellants that after the amendment of Order 21, Rule 101 by the C.P.C. Amendment Act, 1976, the resort to suit is altogether barred and the application under Order 21, Rule 99 and the appeal under Rule 103 are the exclusive remedies available. We find it difficult to accept this contention. We agree with the learned Single Judge that the bar against filing of a separate suit would apply only if there was an application under Rule 99 but not otherwise. The third party aggrieved by dispossession in execution of a decree, may make an application to the Court complaining such dispossession. If he makes such an application, all questions including questions relating to right, title and possession in the properties shall be decided in that application as if it were a full-fledged suit for title and possession and no separate suit would lie for this purpose. However, an appeal lies under Rule 103 as if the order passed on such application is decree. We are unable to visualise the provisions of Rules 99 to 101 even after amendment as laying down an exhaustive Code on the remedies of the third parties dispossessed in execution of a decree for possession. The remedy under Order 21, Rule 99, C.P.C. is no doubt one of the remedies available to the person dispossessed. But, we are unable to construe Order 21, Rule 99 as placing a bar on bringing an independent suit for possession, without filing an application under the said Rule. Such a bar, in our view does not arise even by necessary implication.

IN THE HIGH COURT OF BOMBAY AT GOA

Civil Revision Application No. 73 of 2001

Decided On: 13.09.2002

Sushila Sadanand Borkar  Vs. Maria Exaltacao Vaz

Hon'ble Judges/Coram:

Dr. S. Radhakrishnan, J.

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Whether Validity of decree passed on compromise can be challenged by a separate suit?

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 the second Defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code.

12. We may also refer to the decision of this Court in Banwari Lal v. Chando Devi MANU/SC/0152/1993 : (1993) 1 SCC 581 where also this Court had observed:

As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order XXIII, or an appeal Under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 13 of the Code.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 10416-10417 of 2014 

Decided On: 20.11.2014

 R. Rajanna Vs.  S.R. Venkataswamy

Hon'ble Judges/Coram:

T.S. Thakur and R. Banumathi, JJ.

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Whether it is necessary to file separate suit for setting aside compromise decree on ground of fraud?

The seminal question that hinges for consideration is what is the remedy available to the party aggrieved when a question relating to lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise?

6. Order 23 Rule 3(A) CPC is the hub of issue. The same reads as under:-

"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 than 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 avoidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.

7. In R. Rajanna v. S.R., Venkataswamy and others, MANU/SC/1060/2014 : (2014) 15 SCC 471, the apex Court held thus;

"10. It is manifest from a plain reading of the above that in terms of the proviso to Order XXIII Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order XXIII Rule 3, the agreement or compromise shall not be deemed to be lawful within meaning of the said rule if the same is void or voidable under Indian Contract Act, 187.2. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the Court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order XXIII Rule 3A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question. The Court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order XXIII Rule 3A of CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge validity of the compromise decree, the Court before whom the suit came up rejected the plaint under Order VII Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order XXIII Rule 3A of the CPC, Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher Court.

IN THE HIGH COURT OF ORISSA

C.M.P. No. 1193 of 2015

Decided On: 05.04.2017

 Subash Mohapatra Vs.  Kamala Mohapatra and Ors.

Hon'ble Judges/Coram:

Dr. Akshaya Kumar Rath, J.

Citation: AIR 2017(NOC)819 Orissa

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Whether separate suit is maintainable for setting aside compromise decree?

The provisions of Order XXIII Rule 3­A of the Code
specifically bar the filing of a suit for setting aside a decree on the
ground that the compromise on the basis of which the decree was
passed was not lawful. The explanation to Rule 3 of Order XXIII of
the Code indicates that a compromise that is void or voidable
under the Indian Contract Act, 1872 is not deemed to be lawful
under Rule 3. In  Banwarilal (supra), it was held by the Hon'ble
Supreme Court that the compromise is sought to be challenged as
being fraudulent when it is deemed to be void within the meaning

of the explanation to the proviso to Rule 3 of Order XXIII of the
Code and as such, is not lawful. The prayer for setting aside the
compromise has to be made before the same Court which recorded
the   compromise.   Similarly,   in  Horil   (supra),   this   position   was
reiterated and it was held that a separate suit for challenging the
compromise on the ground that it was obtained by fraud was not
maintainable.   In  R.   Rajanna   (supra),  it   was   again   held   that   a
separate suit of the present nature for challenging a compromise as
not being lawful was not maintainable.
From the aforesaid, therefore, the legal position is well
settled as regards remedy available for challenging a compromise
which is not lawful.  That a compromise which is obtained through
fraud, with coercion and through misrepresentation would not be
lawful also does not admit of any doubt.  Thus, the only recourse
that is available in such case is to approach the same Court under
provisions of Order XXIII  Rule 3 of the Code. The same cannot be
done by a separate suit which is barred in view of provisions of
Order XXIII  Rule 3A of the Code. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CIVIL REVISION APPLICATION NO.88 OF 2014

Sushil Sohanlal Agrawal,  Vs Harishankar   Ramnivas   Sharma,

CORAM: A.S. CHANDURKAR, J.

DATED:  26­-02­-2016.
Citation:2016(4) MHLJ 904

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When it is necessary to file separate suit for getting future mesne profits?

Though a prayer for future mesne profits need not and cannot be asked for in the plaint itself and such a relief can be sought by way of a petition under Order 20, Rule 12, Civil P.C. at any time during the pendency of proceedings, as long as the appeals are deemed be continuation of the suits, the suit must be deemed to be pending and the relief sought for can be granted at any time during the pendency of the appeals, but that relief if granted, by the Court, should be incorporated in the decree that becomes final. After the disposal of the appeal, if there is no such relief, the only recourse available to the parties appears to be by way of a separate suit. (Vide Tausif Ahmad v. Baharuddin, MANU/BH/0127/1965 : AIR1965Pat436 ).

Equivalent Citation : AIR 1974 AP 289

IN THE HIGH COURT OF ANDHRA PRADESH

Civil revn. Petn. No. 1061 of 1971

Decided On: 30.07.1973

Appellants: Veeramachaneni Gangadhararao
Vs.
Respondent: Kanuri venkatgeswara Rao and Ors.

Hon'ble Judges: A.D.V. Reddy, J.

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Whether Stranger to compromise decree can file separate suit to challenge compromise decree?

A stranger to the suit is obviously a stranger to the agreement of compromise. 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. Therefore, the bar under Rule 3A of Order 23 cannot be extended to him. The provision must confine only to the parties to the suit, who are parties to the agreement to compromise. Hence, I am in respectful agreement with the decisions of the Allahabad High Court and Karnataka High Court, holding that a 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.

Bombay High Court

Khalil Haji Bholumiya Salar vs Parveen W/O. Sayyeduddin on 7 August, 2012

Bench: R.P. Sondurbaldota

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