Gujarat High Court
Patel Chiragbhai Bhaskarbhai vs Nitaben Kamleshbhai Shah on 10 July, 2025
NEUTRAL CITATION
C/FA/2477/2023 ORDER DATED: 10/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2477 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 2477 of 2023
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 2 of 2023
In R/FIRST APPEAL NO. 2477 of 2023
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PATEL CHIRAGBHAI BHASKARBHAI & ANR.
Versus
NITABEN KAMLESHBHAI SHAH & ORS.
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Appearance:
MR SHEGUN B CHOKSHI(12790) for the Appellant(s) No. 1,2
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2
GANDHI LAW ASSOCIATES(12275) for the Defendant(s) No. 1,2
REFUSED SERVED (N)(10) for the Defendant(s) No.
10,11,12,13,14,15,16,17,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 10/07/2025
ORAL ORDER
1. The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 by the appellants
- original defendant Nos.16 and 17 challenging the judgment and decree dated 06.05.2023 passed by learned 20th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.283 of 2017.
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NEUTRAL CITATION C/FA/2477/2023 ORDER DATED: 10/07/2025 undefined
2. Heard learned advocate Mr.Shegun Chokshi with learned advocate Mr.Kush Bhvish for learned advocate Mr.S.P.Majmudar for the appellants and learned senior counsel Mr.Manish Bhatt with learned advocate Isa Hakim and learned advocate Nitya Joshi for the respondents.
3. Since the issue involved in the present First Appeal is purely a question of law, with request and consent of learned advocates for the parties, the Appeal is taken up for final hearing.
4. Brief facts narrated in the present First Appeal are as under:
4.1 The land in question is situated at mauje:
Dumad, Dist.: Vadodara bearing Revenue Survey No.1321/1, Block No.915 admeasuring 01-05-58 H-RA-Sq. Mtrs. which is referred as suit property. Page 2 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:18:39 IST 2025
NEUTRAL CITATION C/FA/2477/2023 ORDER DATED: 10/07/2025 undefined 4.2. The present appellants filed Special Civil Suit No.85 of 2016 seeking relief by way of specific performance of an Agreement to Sell dated 02.01.2016, executed between the appellants and present respondent Nos.3 to 6 with regard to suit property. During the pendency of the suit, parties settled the dispute by way of a compromise pursis submitted at Ex.12 and a consent decree came to be passed on 26.04.2016. Pursuant to the said decree, a registered sale deed was executed between the appellants and respondent Nos.3 to 6. Subsequently, respondent Nos.1 and 2 filed Special Civil Suit No.283 of 2017 seeking a relief of setting aside the consent decree dated 26.04.2016 and further prayed for a relief of permanent injunction. The learned trail Court decreed the suit of in favour of respondent Nos.1 and 2. Being aggrieved and dissatisfied with the impugned judgment and decree, present appeal is filed.
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5. Learned advocate for the appellants has submitted 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 judgment and decree is patently illegal and therefore the same is required to be set aside. 5.1 Learned advocate for the appellants has further submitted that the appellants have filed a separate suit being Special Civil Suit No.65 of 2016, challenging the sale deed executed in favour of respondent Nos.1 and 2, which is pending for its adjudication.
5.2 In support of his contentions, learned advocate for the appellants has relied upon the following decisions:
(i) Triloki Nath Singh Vs. Anirudh Singh(D) Thr.Lrs.
Reported in 2020(0)AIJEL-SC 66233;
(ii) Sakina Sultanali Sunesara (Momin) Vs. Shia Imami Ismaili Momin Jamat Samaj reported in 2019(0) AIJEL-HC 240951 and Page 4 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:18:39 IST 2025 NEUTRAL CITATION C/FA/2477/2023 ORDER DATED: 10/07/2025 undefined
(iii) Prakash Robin Nayudu Vs. Rev. Imanuel S. Kant reported in 2023(0) AIJEL-HC 245857.
6. Per contra, learned senior counsel Mr.Manish Bhatt for the respondents has very fairly conceded that the decision referred to and relied upon by the learned advocate for the appellants in the case of Prakash Robin (supra) was assailed before the Hon'ble Apex Court and the Hon'ble Apex Court has confirmed the view taken by the Co-ordinate Bench of this Court. However learned senior has counsel submitted that respondent Nos.1 and 2 intend to take appropriate recourse to challenge the impugned consent decree dated 26.04.2016. It is contended by learned senior advocate that though a separate suit challenging the consent decree is not a permissible remedy, in the present case, consent decree is vitiated by fraud, as respondent Nos.1 and 2 are the owners of the suit land by virtue of a registered sale deed dated Page 5 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:18:39 IST 2025 NEUTRAL CITATION C/FA/2477/2023 ORDER DATED: 10/07/2025 undefined 08.03.2013, executed through their power of attorney holder, Mr.Sanjay Patel. Respondent Nos.1 and 2 had also filed Regular Civil Suit No.345 of 2013 seeking a declaration and relief concerning the release of the sale deed dated 08.03.2013. On 17.05.2016, learned trial Court ordered the release of the said sale deed and the said suit is pending.
6.1 Learned senior counsel Mr.Bhatt further submitted that if the respondents herein avail the remedy of challenging the consent decree by way of appropriate proceedings, the time consumed in litigating Regular Civil Suit No.283 of 2017 be excluded while computing the period of limitation.
7. Be that as it may, in the present First Appeal, the question which has been raised by learned advocate Page 6 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:18:39 IST 2025 NEUTRAL CITATION C/FA/2477/2023 ORDER DATED: 10/07/2025 undefined for the appellants is that a separate suit challenging a consent decree drawn by the Civil Court cannot be challenged by way of a separate suit. The view taken by the Co-ordinate Bench of this Court in the case of Prakash Robin (supra) has been upheld by the Hon'ble Apex Court in the case of Sakina Sultanali Sunesara (Momin) Vs. Shia Imami Ismaili Momin Jamat Samaj & Ors. Reported in 2025 SCC online SC 930. In para 15, the Hon'ble Apex Court has observed as under:-
"15. We are satisfied that the Larger Bench took the right view. It noticed that the CPC, after the 1976 amendment, works in two distinct ways. If a person was already a party to the suit, and denies that any lawful compromise ever took place, the CPC requires that person to go back to the Trial Court under the proviso to Order XXIII Rule 3 and ask that Court to decide whether the compromise is valid. On the other hand, someone who was not a party to the suit, but whose rights are hurt by a consent decree, may approach the Appellate Court in a First Appeal under Section 96 of the CPC, but only after obtaining leave. Order XLIII Rule 1-A does not create an independent appeal at all; it merely says that, once an appeal is otherwise before the Court, the appellant may argue that the compromise should, or should not, have been Page 7 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:18:39 IST 2025 NEUTRAL CITATION C/FA/2477/2023 ORDER DATED: 10/07/2025 undefined recorded. Seen in that light, the High Court's directions correctly apply the structure of the statute and do not call for interference.
8. Considering the facts and provisions of law, it is a settled proposition of law that a person, who is aggrieved by a consent decree, cannot challenge the consent decree by way of a separate suit. The remedy available to the parties, who is aggrieved by consent decree is challenged by way of an appeal after taking leave of the Court. Since the issue is squarely covered by the aforesaid decisions, present First Appeal deserves to be allowed and the same is allowed. The judgment and decree dated 06.05.2023 passed by learned 20 th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.283 of 2017, is hereby quashed and set aside.
9. Considering the submissions canvassed by learned senior counsel if any application is filed seeking Page 8 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:18:39 IST 2025 NEUTRAL CITATION C/FA/2477/2023 ORDER DATED: 10/07/2025 undefined condonation of delay, the same may be decided on merits and if any submission with regard to exclusion of time in computing period of limitation is made, the same may be considered as per law. It is further clarified that the question of limitation be decided by the concerned Court below strictly on merits and as per the provisions of law and shall not be influenced by the observations made hereinabove.
10. It is needless to observe that this Court has not examined the contentions of either parties, and all contentions of both sides are kept open for adjudication.
11. Since the suit property is under various litigation and the rights of the parties are yet to be crystallized, it would be in the interest of justice that both parties shall maintain the status quo qua with regard to possession and of title suit property for a period of two months from Page 9 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:18:39 IST 2025 NEUTRAL CITATION C/FA/2477/2023 ORDER DATED: 10/07/2025 undefined today.
12. In view of the order passed in the main matter, connected Civil Applications stand disposed of accordingly.
(D. M. DESAI,J) MANOJ Page 10 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:18:39 IST 2025