Bombay High Court
Smt.Vishankumari Udaysingh ... vs Shri. Rajasingh Giridharsingh ... on 1 July, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.627 OF 2016
1] SMT.VISHANKUMARI UDAYSINGH VARMA THR.
HER DAUGHTER AND CONSTITUTED ATTORNEY
MANJU U. VARMA AND ANR.
R/AT- THAKUR BHAVAN, GROUND FLOOR, OPP. JAIN
MANDIR,
5TH FLOOR, KHAR (WEST),
MUMBAI-400052
2] SMT. MANJU UDAYSINGH VARMA
R/AT- THAKUR BHAVAN, GROUND FLOOR, OPP. JAIN
MANDIR, .. Appellants
5TH FLOOR, KHAR (WEST), (Orig.Plaintiffs)
MUMBAI-400052
vs
1] SHRI. VIJAYSINGH RAJASINGH VARMA AND
ORS.
R/AT- MAYFAIR BLISS PLOT NO.112, FLAT NO.601,
6TH FLOOR
ABOVE STATE BANK OF INDIA, 7TH ROAD, KHAR
(WEST),
MUMBAI-400052
2] SHRI. VIJAYSINGH RAJASINGH VARMA HUF
THORUGH ITS KARTA AND MANAGER
VIJAYSINGH RAJASINGH VARMA
R/AT- MAYFAIR BLISS, PLOT NO.112, FLAT NO.601,
6TH FLOOR,
ABOVE STATE BANK OF INDIA, 7TH ROAD, KHAR
(WEST),
MUMBAI-400052
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3] SMT. SEEMA VIJAYSINGH VARMA
R/AT- MAYFAIR BLISS, PLOT NO.112, FLAT NO.601,
6TH FLOOR,
ABOVE STATE BANK OF INDIA, 7TH ROAD, KHAR
(WEST),
MUMBAI-400052
4] SHRI. VISHAL VIJAYSINGH VARMA
R/AT- MAYFAIR BLISS, PLOT NO.112, FLAT NO.601,
6TH FLOOR,
ABOVE STATE BANK OF INDIA, 7TH ROAD, KHAR
(WEST),
MUMBAI-400052
5] SHRI. AMAR VIJAYSINGH VARMA
R/AT- MAYFAIR BLISS, PLOT NO.112, FLAT NO.601,
6TH FLOOR,
ABOVE STATE BANK OF INDIA, 7TH ROAD, KHAR
(WEST),
MUMBAI-400052
6] RUCHITA VIJAYSINGH VARMA
R/AT- MAYFAIR BLISS, PLOT NO.112, FLAT NO.601,
6TH FLOOR,
ABOVE STATE BANK OF INDIA, 7TH ROAD, KHAR
(WEST),
MUMBAI-400052
7] SHRI. ASHOK UDAYSINGH VARMA
R/AT- THAKUR BHAVAN, GROUND FLOOR, OPP. JAIN
MANDIR,
5TH ROAD, KHAR (WEST), MUMBAI-400052
8] SHRI. SANJAY UDAYSINGH VARMA
R/AT- THAKUR BHAVAN, GROUND FLOOR, OPP. JAIN
MANDIR,
5TH ROAD, KHAR (WEST),
MUMBAI-400052
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9] SMT. GEETANJALI ALIAS ANJALI UDAYSINGH
VARMA
R/AT- THAKUR BHAVAN, GROUND FLOOR, OPP. JAIN
MANDIR,
5TH ROAD, KHAR (WEST),
MUMBAI-400052
10] M/S. UNITED LEACH CORPORATION
R/AT- THAKUR BHAVAN, GROUND FLOOR, OPP. JAIN
MANDIR,
5TH ROAD, KHAR (WEST),
MUMBAI-400052
11] SHRI. DHARNIDHAR KHIMCHAND
SHAH(DECEASED)THROUGH 11-1) SMT.
LEELAVATI DHARNIDHAR SHAH
R/AT- A-61, 62, SHANTI NAGAR,
98, NEPEAN SEA ROAD,
MUMBAI-400006
11.1] SMT. LEELAVATI DHARNIDHAR SHAH
R/AT- A-61, 62, SHANTI NAGAR,
98, NEPEAN SEA ROAD,
MUMBAI-400006
11.2] SHRI. MANISH DHARNIDHAR SHAH
R/AT- A-61, 62, SHANTI NAGAR,
98, NEPEAN SEA ROAD,
MUMBAI-400006
11.3] SMT. MALA VIJAY DOSHI
R/AT- A-61, 62, SHANTI NAGAR,
98, NEPEAN SEA ROAD,
MUMBAI-400006
11.4] SMT. ISHANI KAUSHAL DOSHI
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R/AT- A-61, 62, SHANTI NAGAR,
98, NEPEAN SEA ROAD,
MUMBAI-400006
11.5] SMT. DHARANI SAGAR SHAH
R/AT- A-61, 62, SHANTI NAGAR,
98, NEPEAN SEA ROAD,
MUMBAI-400006
11.6] SHRI. NAVINCHANDRA K. SHAH
R/AT- A-61, 62, SHANTI NAGAR,
98, NEPEAN SEA ROAD,MUMBAI-400006
12] SMT. PARVATIBAI RAJASINGH VARMA (NOW
DECEASED)THROUGH HIS LEGAL HEIRS THE
DEFENDANT NOS.1,13 AND 14
13] SMT. PRAMILA ABHAYSINGH VARMA
14] SMT. ANITA MANGATRAM RANA
R/AT- GAUTAM COLONY, GALLI NO.6,
HOUSE NO.49, NARELA TOWN,
DELHI-
15] SMT. SUSHILA MAHAVIRSINGH BHARDWAJ
(DECEASED)THROUGH HER LEGAL HEIRS.15-
1)SHRI.MAHABIR S.BHARDWAJ
R/AT- HOUSE NO.2383, MAULI-JAGRAN,
CHANDIGARH
U.T-
15.1] SHRI. MAHABIR SINGH BHARDWAJ
R/AT- HOUSE NO.2383, MAULI-JAGRAN,
CHANDIGARH
U.T-
15.2] SMT. SHWETA KANWAR
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R/AT- HOUSE NO.2383, MAULI-JAGRAN,
CHANDIGARH
U.T-
15.3] SMT. RUBINA KANWAR
R/AT- HOUSE NO.2383, MAULI-JAGRAN,
CHANDIGARH
U.T.-
15.4] SMT. NIRJA KANWAR
R/AT- HOUSE NO.2383, MAULI-JAGRAN,
CHANDIGARH
U.T-
15.5] SMT. SHILPA KANWAR
R/AT- HOUSE NO.2383, MAULI-JAGRAN,
CHANDIGARH
U.T-
16] SMT. RAMAVATI RAJPALSINGH BHARDWAJ
(DECEASED) HEIRS NOT KNOWN/NOT TRACEBLE
R/AT- FLAT- VILLAGE AND P.O. BATTAH,
DISTRICT - JIND, HARYANA.
17] M/S. TRANSCON PROPERTIES PRIVATE
LIMITED
18] M/S. KMD ENTERPRISES
OFFICE AT- 9, HEMA APARTMENT, VALLABHBAUG
LANE EXTENSION,
GHATKOPAR (EAST),
MUMBAI-
19] SHRI. KISHOR PRANJIVAN MEHTA
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OFFICE AT- JAYALAXMI BUILDING, 4TH FLOOR,
M.G.ROAD,
GHATKOPAR (WEST),
MUMBAI-
20] SHRI. KANTILAL MANILAL SHAH (DECEASED)
THROUGH HIS LEGAL HEIRS-20-1) SHRI. VIRAL
KANTILAL SHAH
R/AT- GHATKOPAR SAHJEEVAN COOPERATIVE
HOUSING SOCIETY LIMITED, PLOT NO.26,
SULSHA HOUSE, 3RD FLOOR, NATHIPAI
NAGAR,GHATKOPAR (EAST),
MUMBAI-400077
20.1] SHRI. VIRAL KANTILAL SHAH
R/AT- GHATKOPAR SAHJEEVAN COOPERATIVE
HOUSING SOCIETY LIMITED, PLOT NO.26,
SULSHA HOUSE, 3RD FLOOR, NATHIPAI
NAGAR,GHATKOPAR (EAST),
MUMBAI-400077
20.2] SHRI. VISHAL KANTILAL SHAH
R/AT- GHATKOPAR SAHJEEVAN COOPERATIVE
HOUSING SOCIETY LIMITED, PLOT NO.26,
SULSHA HOUSE, 3RD FLOOR, NATHIPAI
NAGAR,GHATKOPAR (EAST),
MUMBAI-400077
20.3] SHRI. BHAVIK KANTILAL SHAH
R/AT- GHATKOPAR SAHJEEVAN COOPERATIVE
HOUSING SOCIETY LIMITED, PLOT NO.26,
SULSHA HOUSE, 3RD FLOOR, NATHIPAI
NAGAR,GHATKOPAR (EAST),
MUMBAI-400077
21] SHRI. RAJASINGH GIRIDHARSINGH VARMA
(HUF) THRROUGH ITS KARTA AND MANAGER
SHRI. ASHOK U. VARMA
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R/AT- THAKUR BHAVAN, 5TH ROAD,
KHAR (WEST),
MUMBAI-400052
22] SMT. SUNITA ASHOK VARMA
R/AT- THAKUR BHAVAN, 5TH ROAD,
KHAR (WEST),
MUMBAI-400052
23] SMT. NANDINI SANJAY VARMA
R/AT- THAKUR BHAVAN, 5TH ROAD,
KHAR (WEST),
MUMBAI-400052
24] KAPSTONE CONSTRUCTIONS PRIVATE
LIMITED
REGISTERED OFFICE AT- JMC HOUSE, BISLERI
COMPOUND,
WESTERN EXPRESS HIGHWAY, ANDHERI (EAST),
MUMBAI-400099
..
Respondents
(Orig.Defendants)
Mr.Rajesh D.Bindra with Mr.Prasad P.Pathare for Appellants
Ms.Gargi Bhagwat i/b Divekar Bhagwat & Co for Respondent no.1
Ms.Pooja Kshirsagar i/b I.C.Legal for Respondent no.17
Ms.Deepti Panda with Mr.Devansh Bheda i/b Purnanand & Co
for Respondent nos.18,19 20 (1) to 20 (3)
Mr.P.K.Dhakephalkar Senior Advocate with Mr.Amol P.Mhatre
for Respondent no.24
CORAM: ANOOP V.MOHTA &
G.S.KULKARNI,JJ
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JUDGMENT RESERVED ON 13TH JUNE, 2016
JUDGMENT PRONOUNCED ON: 1ST JULY, 2016
ORAL JUDGMENT (Per G.S.Kulkarni, J)
1. This appeal is directed against the judgment and
order dated 28th December 2015 passed by the learned Joint
Civil Judge, Senior Division, Thane whereby Special Civil Suit
No.432 of 2015 (for short 'the suit') has been dismissed as not
maintainable in view of the bar as prescribed under Order XXIII
Rule 3 A of the Code of Civil Procedure, 1908.
2. The contesting respondent in this appeal is
defendant no.24 who filed an application in the suit, raising an
objection to the maintainability of the suit in view of the
provisions of Order XXIII Rule 3A of the Code of Civil
Procedure 1908, as the appellants/plaintiffs was inter alia
seeking a declaration that the compromise decree dated 22 July
2004 in Special Civil Suit No.230 of 1987 be set aside. This
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application was contested by the appellants/plaintiffs inter alia
contending that the suit was maintainable inasmuch as though
it was prayed that the compromise decree in Special Civil Suit
No.230 of 1987 be set aside, however there were also other
independent prayers in the plaint. Appellants also contended
that the said compromise decree was obtained by fraud and
thus on this count the suit was not barred under Order XXIII
Rule 3A of the C.P.C.
3. Learned counsel for the appellants in assailing
the impugned orders passed by the learned trial Judge would
contend that the bar under Order XXIII rule 3A of the CPC to
the maintainability of the suit was not applicable. Our attention
is drawn to the prayers as made in the plaint to contend that
reliefs as prayed in the plaint are not only for a declaration that
the compromise and the consequent decree in Special Civil Suit
No.230 of 1987 were illegal but, for other substantive reliefs. In
this regard reliance is placed on prayer clause (g) of the plaint
to point out that the appellants has prayed for a declaration in
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regard to entitlement to 50% of the mesne profit/gross sale
proceeds earned by defendant nos.1 to 6,11/1,11/6,17 to 20
and 24 pursuant to consent terms dated 27 April, 2004 in
Special Civil Suit No.230 of 1987 and the decree thereof dated
22 July, 2004, which is an independent relief. It is next
submitted that the plaint contains allegations that the decree in
Special Civil Suit No.230 of 1987 is obtained by fraud and thus
in any case a separate suit was maintainable. In support of his
submissions learned counsel for the appellants has placed
reliance on the decision of the learned Single Judge of this
Court in the case of Jethalal C.Thakkar & ors vs Lalbhai
Hiralal Shah1 and in case of Smt Anita vs Rambilas2.
4. On the other hand, Mr.Dhakephalkar learned
senior counsel appearing for the contesting respondent
(defendant no.24) submits that the impugned order does not
call for any interference. In his submission the learned trial
1 1986 (O) BCI 52
2 AIR 2003 Andhra Pradesh 32
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judge has appropriately held that a separate civil suit for setting
aside of the decree on the basis of the compromise was not
maintainable, as Order XXIII Rule 3A of CPC created an
absolute bar to file such a suit. Mr.Dhakephalkar would submit
that if the contentions as raised on behalf of the appellants are
accepted, the same would frustrate the very rationale and
object behind Order XXIII Rule 3A of the CPC and defeat the
said provision. Mr.Dhakephalkar has drawn our attention to the
prayers as made in the said plaint to contend that even the
other prayers as made in the plaint revolve around the consent
terms and thus a camouflage argument of the appellants as
noted above should not be accepted. In support of his
submissions Mr.Dhakephalkar has placed reliance on the
decision of the Supreme Court in the case of Banwari Lal vs.
Chando Devi (Smt Through LRS) & anr 3 and the decision of
the learned Single Judge of this Court in the case of
Dr.Damodar Tukaram Gaunkar vs.Gopinath Rama Gaunkar
3 (1993) 1 Supreme Court Cases 581
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& ors.4
5. We have perused the impugned order as also the
plaint in the civil suit in question. Admittedly, Special Civil Suit
No.230 of 1987 was disposed of by the Civil Court in view of
the compromise which was entered between the parties dated
27 April, 2004 and the consequent decree dated 22 July,2004
passed thereon. The suit in question which is filed in the year
2012, after about eight years of the compromise decree passed
in Special Civil Suit No.230 of 1987 admittedly is on the
ground that the said compromise was not acceptable to the
appellants/plaintiffs on the following grounds as also noted by
the trial Court. :
"(i) the consent terms on record are totally different
from those which were shown to the defendant no.7;
(ii) the signatures of their power of attorney only appears
on the last page of the consent terms while the signatures
of other parties are on every page of the consent terms;
(iii) for defendant no.10 the defendant no.7 as well as
Nitin Game appeared to have signed;
(iv) the interested parties tampered with the consent
terms at a certain stage for their personal benefits;
4 2006 (3) ALL MR 88
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(v) the consent terms consist of an illogical and
disjointed set of paragraphs;
(vi) the memorandum of understanding and the
agreement referred in the consent terms are not
exhibited with the consent terms;
(vii) the defendant no.7 signed the consent terms for
defendant no.11 who was no more at that time;
(viii) the defendant no.1 at one place declared as
exclusive owner of the property and at other place get
the benefit of a share in gross cells of about 21%;
(ix) on one hand the plaintiffs and the defendant no.7 to
9 totally relinquished their rights and on the other hand
undertake to indemnify the defendant no.1;
(x) the plaintiffs have not received any consideration
under any of the agreement;
(xi) The document of consent term is tempered
document and manipulated to defraud the
appellant/plaintiff.
6. It is thus clear from the above contentions of the
appellants/plaintiffs as also the prayers as made in the plaint
that the principal relief as prayed in the suit is to seek
annulment of the consent decree in Special Civil Suit No.232 of
1987 which is admittedly passed on the basis of a compromise
dated 27 April 2004. In fact all the prayers are in the context of
the compromise decree.
7. However, to examine the contention as urged
on behalf of the appellants and more particularly the
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contention that as the appellants had pleaded fraud in the
plaint the suit was not barred under Order XXIII Rule 3A, it
would be useful to note the provisions of Order XXIII Rule 3
and Rule 3A as inserted by CPC (Amendment) Act,1976 and
the legislative scheme as flows therefrom:-
"O.XXIII R.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, shall not be deemed to be lawful within the
meaning of this rule.)
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O.XXIII R.3A. 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.
8. Rule 3 thus clearly envisages that in a case
where a question arises whether or not there is a lawful
compromise or an agreement in writing and signed by the
parties, the question whether such agreement or compromise is
lawful is required to be determined by the Court which has
passed the decree. Further from a plain reading of the proviso
to Rule 3 it is clear that where one party to a suit alleges that
an adjustment or satisfaction has been arrived at, and the same
is denied by the other party, then in that event the Court shall
decide the question. The explanation to Rule 3 also provides
that such adjustment, satisfaction or compromise if is void or
voidable under the Indian Contract Act,1872, then it shall not
be deemed to be lawful for the purpose of Rule 3. Further as to
whether the decree is lawful, the test would be as explicitly
laid down in the explanation, namely that the Court would test
the allegations whether the agreement or compromise is void or
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voidable under the Contract Act. Thus, a plea as taken by the
appellants that the appellants were defrauded to enter into a
compromise leading to the decree in Special Civil Suit No.230
of 1987 is an issue which would fall within the ambit of Order
XXIII Rule 3 which could be urged before the Court which
passed the decree.
9. It is thus clear that such issues by which one
party alleges/disputes the legality of the compromise decree is
required to be gone into by the same Court which has passed
the decree as manifest from Rule 3 of Order XXIII of C.P.C. and
it would not be admissible to file a suit to challenge such
compromise decree. The legislature has reinforced the intention
which flows from Order XXIII Rule 3 by enacting Order XXIII
Rule 3A which bars a suit to set aside a decree on the ground
that the compromise on which the decree is passed was not
lawful. A conjoint reading of the provisions of Rule 3 and Rule
3A of Order XXIII thus necessarily implies that a party to an
earlier suit cannot bring a fresh suit to assail a decree of the
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Court passed under a compromise. The intention of the
legislature is that the compromise decree shall not be subjected
to protracted litigation in a subsequent suit which may be
brought by any of the parties to challenge a decree based on a
compromise. This is to achieve the object of conferring a
sanctity to a compromise decree and avoid unwarranted
litigation. In this legislative scheme we may also note two more
provisions which would throw a further right on the issue firstly
section 96 (3) of CPC which expressly bars an appeal from a
decree passed by the Court with consent of parties and secondly
Order 43 Rule 1A which provides for a remedy of appeal when
a party intends to assail a decree on the ground that a
compromise should not have been recorded. From a plain
reading of the said provisions it is very clear that a fresh suit by
one of the parties to assail a compromise decree is not
maintainable.
10. The Supreme Court in the case of Banwari
Lal vs Chando Devi (supra) considered the purpose and
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object of the Code of Civil Procedure, 1908 Amendment Act
1976 and held that the proper remedy for the party assailing a
decree on compromise will be to file an application to recall the
order regarding the compromise entered into between the
parties to a suit in dealing with the issue. The Court had made
the following observations:
7. By adding the proviso along with an explanation the
purpose and the object of the amending Act appears to be to
compel the party challenging the compromise to question the
same before the Court which had recorded the compromise in
question. That Court was enjoined to decide the controversy
whether the parties have arrived at an adjustment in a lawful
manner. The explanation made it clear that an agreement or a
compromise which is void or voidable under the Indian
Contract Act shall not be deemed to be lawful within the
meaning of the said Rule. Having introduced the proviso along
with the explanation in Rule 3 in order to avoid multiplicity of
suit and prolonged litigation, a specific bar was prescribed by
Rule 3A in respect of institution of a separate suit for setting
aside a decree on basis of a compromise saying :-
3A. 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."
11. We may also refer to a recent decision of the
Supreme Court in the case of R.Rajanna vs
S.R.Venkataswamy & Ors.5 In this decision considering the
5 AIR 2015 SC 706
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provision of Order XXIII Rule 3 and Rule 3A the decision in
Banwarilal (supra) as also the decision in Pushpadevi Bhagat
vs Rajinder Singh6 the Supreme Court held that the issue as to
whether an agreement or compromise leading to a decree in a
suit is lawful, is required to be raised before the Court that
passed such decree and it is that court alone which can
examine and determine that question as Order XXIII Rule 3A
clearly bars a suit and set aside the decree on the ground that
the compromise on which the decree is drawn is not lawful.
The Supreme Court thus held as under :
"8. The precise question that falls for determination in
the above backdrop is whether the High Court was right in
directing the appellant to seek redress in the suit having regard
to the provisions of Order XXIII, Rule 3 and Rule 3A of CPC.
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, 1872. 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,
6 (2006) 5 SCC 566
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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.
11. The upshot of the above discussion is that the High
Court fell in a palpable error in directing the plaintiff to take
recourse to the remedy by way of separate suit. The High Court
in the process remained oblivious of the provisions of Order
XXIII Rules 3 and 3A of the CPC as also orders passed by the
City Civil Court rejecting the plaint in which the Trial Court
had not only placed reliance upon Order XXIII Rule 3A but also
the decision of the Court in Pushpa Devi's case (supra) holding
that a separate suit was not maintainable and that the only
remedy available to the aggrieved party was to approach the
Court which had passed the compromise decree. The following
passage from the decision of Pushpa Devi (supra) case is, in
this regard, apposite:"
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12. Adverting to the facts of the present case
which we have noted and in view of the above clear position in
law we are certain that the suit in question was clearly barred
by the provisions of Order XXIII Rule 3A of the CPC. Learned
counsel for the respondent has appropriately relied on that
decision of the learned Single Judge in the case of Dr.Damodar
Gaunkar (supra) the learned single Judge taking into
consideration the decision in Banwarilal (supra) has held that
a separate suit would not be maintainable to challenge a
consent decree and that it would be necessary for an aggrieved
party to file an application before the same Court.
13. In view of the authoritative pronouncements of
the Supreme Court in the case of Banwarilal (supra) and in
the case of R.Rajanna (supra) reliance on behalf of the
appellants on the decision of the learned single Judge of this
Court in Jethalal Thakkar's case (supra) is inappropriate. We
may note that in Banwarilal the Supreme Court had considered
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issue of collusion and fraud as had arisen in the said case
namely a contention that a fabricated petition of compromise
was filed, which is clear from the contents of para 4 of the
decision of the Supreme Court examining the said issue the
Supreme Court had come to a conclusion that a separate suit
was not maintainable as noted by us above in extenso. In view
of this clear position in law as laid down in Banwarilal
(supra), the appellants contention relying on Jethalal Thacker's
case, that as the appellant had pleaded fraud in relation to the
compromise a separate suit was maintainable, cannot be
accepted.
14. We are in complete agreement with the
observations which are made by the learned trial judge in the
impugned order. Having examined the facts as pleaded on
behalf of the appellants/plaintiffs in the plaint in our opinion it
was not open for the appellants to assail compromise decree
dated 22 July 2004 by filing the suit in question. The suit was
clearly barred under Order XXIII Rule 3A of the CPC. The
fa627-16ch
learned trial Judge has rightly dismissed the suit as not
maintainable.
15. In view of the above discussion, the present appeal
lacks merit and is accordingly rejected. No order as to costs.
G.S.KULKARNI, J ANOOP V.MOHTA, J.
