Bombay High Court
Vilas Trimbak Sanap vs Shriram Rajendra Sanap And Others on 20 October, 2016
Bench: P.R. Bora
1 AO 30/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.30 OF 2016
WITH
CIVIL APPLICATION NO.6171/2016
Vilas Trimbak Sanap
Age:51 years, Occu.:Agriculture,
R/o. Gitewadi, Tq. Patoda,
Dist. Beed. APPELLANT
(Orig. Plaintiff)
VERSUS
1.
Shriram Rajendera Sanap
Age:17 years, Occu.:Education
R/o. Gitewadi, Taluka Patoda,
Dist. Beed.
2. Tribhuvan Rajendra Sanap
Age:17 years, Occu.:Education,
R/o. Gitewadi, Taluka Patoda,
District Beed
Respondent No.1 and 2 are minors
u/g of their mother Respondent No.3
3. Sangeeta Rajendra Sanap
Age:39 years, Occu.:Household,
R/o. Gitewadi, Taluka Patoda,
District Beed
4. Trimbak Govind Sanap
Age:81 years, Occu.:Agriculture,
R/o. As above
5. Kailas Trimbak Sanap
Age:56 years, Occu.:Agriculture,
R/o. As above.
6. Arun Trimbak Sanap
Age:41 years, Occu.:Agriculture,
R/o. As above.
RESPONDENTS
(Rsp. No.1 to 3 Third Party)
(Rsp. No.4 to 6 Org. Defts.)
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2 AO 30/2016
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Mr.Satyajit S.Bora, Advocate for Appellant/applicant;
Mr.K.U.More, Adv. for Respondent No.1 to 3.
None for Resp.Nos. 4 to 6, though served.
-----
CORAM : P.R.BORA, J.
RESERVED ON :30
th
August,2016
PRONOUNCED ON:20
th
October,2016
JUDGMENT:
1)
Heard. The appellant has filed the
present appeal against Judgment and Order dated
12th January, 2016 passed by District Judge-1,
Beed in Regular Civil Appeal No.50/2015.
2) The appellant had filed Regular Civil
Suit No.499/2014 for partition against his father
and brothers claiming his 1/4th share alleging
that father and brothers had refused to give him
his share in the suit properties. In the
aforesaid suit, compromise took place between the
parties and on the basis of the said compromise-
deed, the aforesaid civil suit came to be decreed
by the learned trial court.
3 AO 30/2016
3) Present Respondent Nos. 1 to 3, who were
not party to the aforesaid suit, filed Regular
Civil Appeal No. 50/2015 assailing the Judgment
and Decree dated 29th December, 2014 passed by the
Trial court. It was the contention of these
respondents that along with the plaintiff and
defendants in the subject suit, they also possess
share in the suit properties and as such without
there presence in the said suit, impugned decree
could not h ave been passed merely on consent of
the plaintiff and defendants therein.
. The appellant appeared in the appeal
filed by Respondent Nos. 1 to 3 and resisted the
same. The appellant denied the claim of the
respondents that they have share in the suit
properties and also objected to filing of the
appeal by Respondent Nos. 1 to 3 on the ground of
its maintainability. It was the contention of
the present appellant before the first appellate
court that the decree passed by the trial court
on 29th December, 2014 being a consent decree,
Respondent Nos. 1 to 3 herein, were not having
4 AO 30/2016
any right to challenge the said decree by filing
an appeal in view of the specific bar provided
under Section 96(3) of the Code of Civil
Procedure, 1908 (for short, C.P.C.). The learned
first appellate court, however, vide the impugned
judgment, allowed the Regular Civil Appeal
No.50/2015 and thereby remanded the matter to the
trial court for deciding it afresh with a further
direction to implead present Respondent Nos. 1 to
3 as parties to the suit. Aggrieved by, the
original plaintiff has filed the present appeal.
4) Shri Satyajeet Bora, The learned Counsel
for appellant has assailed the impugned Judgment
and Order mainly on the ground that the first
appellate court failed in appreciating that the
decree, which was challenged before it, was a
consent decree, and as such, could not have been
challenged by a third party in view of the
specific bar provided under Section 96(3) of the
C.P.C. In support of the contention so raised,
learned Counsel relied upon two judgments of the
5 AO 30/2016
Hon'ble Apex Court, first in the case of Daljit
Kaur and Anr. Vs. Muktar Steels Pvt. Ltd. and
Ors. - (2013) 16 SCC 607 and another in the case
of Pushpa Devi Bhagat (dead) through L.r. Smt.
Sadhana Rai Vs. Rajinder Singh and Ors. - AIR
2006 SC 2628.
5) Shri K.U.More, learned Counsel appearing
for the respondents, supported the impugned
Judgment and Order. The learned Counsel
submitted that Respondent Nos. 1 to 3 do have
their share in the suit properties. The learned
Counsel further submitted that Govind Genu Sanap
was the original ancestor, who had two sons, viz.
- Tulshiram Trimbak and three daughters. The
learned Counsel further submitted that Tulshiram
had a son viz. Rajendra, who was husband of
present Respondent No.3 and father of Respondent
Nos. 1 & 2. The learned Counsel further
submitted that Govind Genu Sanap and one Hari had
purchased the suit properties from one Chandulal
Kankriya vide registered sale deed executed on
6 AO 30/2016
24th September, 1958 and after death of Govind,
name of his sons were recorded in the revenue
record to the extent of Govind's share.
. The learned Counsel further submitted
that Respondent Nos. 1 to 3 being the legal heirs
of Tulshiram, after death of their father, their
names were recorded in the revenue records vide
mutation entry No. 741 dated 13th January, 2006.
The learned Counsel further submitted that after
death of Rajendra, names of sons of deceased
Rajendra and wife of deceased Rajendra were
recorded in the revenue record pertaining to the
land Survey No. 783 and 775, vide mutation entry
No. 8519/723 dated 20th February, 2007.
6) The learned Counsel further submitted
that before filing of Regular Civil Suit
No.499/2014, earlier on two occasions, the suits
were filed claiming partition in the suit
properties and both the suits were withdrawn by
the respective plaintiffs. The learned Counsel
submitted that the present appellant and present
7 AO 30/2016
Respondent Nos. 5 and 6 had filed Regular Civil
Suit No.61/2014 against present Respondent No.4 -
Trimbak and his wife - Hausabai for partition and
Khasra, 775 Khasra, 53/B in the court of Civil
Judge, Junior Division at Patonda on 10th
February, 2014 and the said suit was withdrawn by
the plaintiffs therein on 19th September, 2014.
7) The learned Counsel further submitted
that thereafter Respondent No.6 in the present
appeal, viz. Arun Trimbak Sanap had filed Regular
Civil Suit No.376/2014 against the present
appellant and the present Respondent Nos. 4 and 5
for partition and separate possession of the land
Survey No.813/AA, 814/E, 815/EE, 783 Khasra, 775
Khasra and 53/B. The learned Counsel further
submitted that in the aforesaid civil suit, the
present Respondent Nos.1 to 3 filed an
application for impleading them as party in the
said suit stating that they were having shares in
the suit lands. The learned Counsel further
8 AO 30/2016
submitted that the aforesaid civil suit was
withdrawn by the plaintiff therein, i.e.
Respondent No.6 herein, viz. Arun Trimbak by
taking the matter on Board.
. The learned Counsel further submitted
that thereafter on 29th December, 2014, the
present appellant filed Regular Civil Suit No.
499/2014 against his father and brothers, i.e.
present Respondent Nos.4, 5 and 6 for partition
and separate possession of the suit lands 813/AA,
814/E, 815/EE, 783 Khasra, 775 Khasra and 53/B,
situated at village Dhangar Jawalga, Tq. Patoda
Dist. Beed. The learned Counsel submitted that
on the same day, i.e. 29th December, 2014, present
appellant and Respondent Nos. 4 to 6 compromised
the suit and got passed consent decree from the
civil court.
. Referring to the facts, as aforesaid,
the learned Counsel submitted that since the
decree obtained by the Trial Court was obtained
by playing fraud on the court and by concealing
the material facts and also without adding
9 AO 30/2016
present Respondent Nos.1 to 3 as party to the
said suit, the first appellate court has rightly
set aside the so called consent decree and has
also further directed the Trial Court to implead
the present Respondent Nos.1 to 3 as a party to
the suit and decide the suit afresh. The
learned Counsel, therefore, prayed for dismissal
of the appeal.
8) The learned Counsel has relied upon the
following judgments, -
i) Banwari Lal Vs. Smt. Chando Devi
(Through L.R.) and Anr. - 1993 BCI 139
(SC)
ii) Kishun alias Ram Kishn (dead) through
L.Rs. Vs. Bihari (D) by L.Rs. - AIR 2005
SC 3799 -
iii) Kantaben T. Shah and Ors. Vs.
Devendrakumar C.Shah and Ors. - AIR 2002
Guj.160; and
iv) Chandrabhan Chunilal Agarwal and Anr.
Vs. Sharad Ramgopal Radhavallab Agarwal
and Ors. - 2014 3 Bom.C.R. 566.
9) After having heard the learned Counsel
appearing for the respective parties and on
10 AO 30/2016
perusal of the impugned judgment and the other
material placed on record by the parties, the
following questions arise for consideration of
this Court, -
i) Whether the appeal filed by present
Respondent Nos. 1 to 3 before the first
appellate court against the decree
passed on 29th December, 2014 by the
ii)
trial court was maintainable?
Whether the decree passed by the Trial
Court on 29th December, 2014 can be held
to be a consent decree?
iii) Whether the impugned judgment is
sustainable?
10) Perusal of the order passed by the Civil
Judge, Junior Division, Patonda in Regular Civil
Suit No.499/2014 on 29th December, 2014,
apparently demonstrates that the aforesaid suit
was decreed in terms of deed of compromise
(Exh.20) which was arrived at between the parties
to the said civil suit. The aforesaid order was
assailed by present Respondent Nos.1 to 3 before
the first appellate court by filing Regular Civil
11 AO 30/2016
Appeal No.50/2015. As has been argued by learned
Counsel appearing for the appellant, since the
decree passed by the Trial Court was a consent
decree, was not liable to be challenged in an
appeal by a third party and filing of such an
appeal is specifically barred in view of
provisions contained in Section 96(3) of C.P.C.
Section 96 of C.P.C. reads thus, -
"96. Appeal from original decree.-
(1) Save where otherwise expressly
provided in the body of this Code or
by any other law for the time being
in force, an appeal shall lie from
every decree passed by any court
exercising original jurisdiction to
the court authorized to hear appeals
from the decisions of such court.
(2) An appeal may lie from an
original decree passed ex parte.
(3) No appeal shall lie from a decree
passed by the court with the consent
of parties.
12 AO 30/2016
(4) No appeal shall lie, except on a
question of law, from a decree in any
suit of the nature cognizable by
courts of small causes, when the
amount or value of the subject matter
of the original suit does not exceed
ten thousand rupees."
11) Considering the controversy arisen in
the present matter, I deem it appropriate to
reproduce herein below the observations made by
the Hon'ble Apex Court in the case of Pushpadevi
(cited supra) in paras 11 and 12 of the said
judgment, which are thus, -
"11. 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
13 AO 30/2016
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.
12. 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.
14 AO 30/2016
(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
15 AO 30/2016
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 maintain-
able, having regard to the express
bar contained in section 96 (3) of
16 AO 30/2016
the Code."
12) In the case of Daljit Kaur (cited
supra), the Hon'ble Apex Court has relied upon
the law laid down in Pushpadevi's case.
13) In view of the law laid down as above,
ostensibly, the argument advanced on behalf of
the appellant appears convincing. However,
considering the peculiar facts involved in the
present case, it appears to me that some more
scrutiny is required of the facts involved in the
present case in reference to the legal
provisions, which are referred by the learned
counsel appearing for the parties during the
course of their arguments, more particularly the
provisions under Section 96(3); Rule 3 of Order
XXIII and Rule 1 of Order 43 of C.P.C.
14) Order XXIII deals with withdrawal and
adjustment of the suit. Rule 3 thereof relates
to compromise of suits, relevant portion of which
17 AO 30/2016
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."
15) Apparently there appears no mistake in
the order passed by the Trial court thereby
accepting the terms of compromise and
consequently passing a consent decree. However,
in view of the facts brought on record by
Respondent Nos. 1 to 3 in the first appeal, it
18 AO 30/2016
appears to me that the present matter needs to be
viewed from a different angle also.
16) The learned Counsel for the appellant
has not disputed the facts as are enumerated by
the first appellate court in the impugned
judgment that prior to filing of Regular Civil
Suit No.499/2014, two more suits were filed
wherein the same parties were involved who were
the parties to the said Regular Civil Suit
No.499/2014. All the said suits,i.e. Regular
Civil Suit No.61/2014, Regular Civil Suit
No.376/2014 and Regular Civil Suit No.499/2014
were filed for partition and separate possession,
though every suit was filed by a different
plaintiff. All the aforesaid suits were between
the present appellant and present Respondent Nos.
4 to 6. The material on record further reveals
that the properties, which were involved in all
the aforesaid suits, were also same. There
further seems no dispute that the Regular Civil
Suit No.61/2014 filed by the present appellant
19 AO 30/2016
and present Respondent Nos. 5 and 6, was
withdrawn by them on 19th September, 2014. As is
revealing from the material on record, present
Respondent No.6, viz. Arun Trimbak Sanap, filed
Regular Civil Suit No.376/2014 for partition and
separate possession of the same properties, which
were the subject matter of earlier Regular Civil
Suit No.61/2014. The present appellant has not
disputed the further fact that in Regular Civil
Suit No.376/2014, an application was filed by the
present Respondent Nos.1 to 3, seeking their
impleadment as necessary parties to the said
suit, claiming that they were having shares in
the suit lands. The present appellant has
further not disputed that the aforesaid Regular
Civil Suit No.376/2014 was also withdrawn by the
plaintiff therein on 15th December, 2014, before
rendering of any decision by the Court on the
application which was filed by present Respondent
Nos.1 to 3 in the said Regular Civil Suit seeking
their intervention. There is further no dispute
that thereafter within fortnight, Regular Civil
20 AO 30/2016
Suit No.499/2014 came to be filed by present
appellant against his father and brothers, i.e.
Respondent Nos.5 and 6 herein, alleging therein
that father and brothers were refusing to give
him his share in the suit properties.
17) As is revealing from the contentions
raised by the present appellant in Regular Civil
Suit No.499/2014 filed by him in the court of
Civil Judge, Junior Division, at Patoda on 29 th
December, 2014, cause of action had arisen for
him to file the said suit on 28th December, 2014,
when he requested the defendants therein, i.e.
his father and brothers to give his separate 1/4th
share in the suit properties and the request so
made by him was turned down by the said
defendants. It is further interesting to note
that the defendants who were alleged to have
refused to give the share of the plaintiff in the
suit properties on 28th December, on the very next
day, i.e. on 29th December, suo-motu appeared in
the said suit within few hours after filing of
21 AO 30/2016
the said suit. It is further undisputed that on
the same day, the compromise terms were filed on
record and the trial court was requested to
record the said compromise and pass a consent
decree in terms of the said compromise. It is
further the matter of record that accordingly,
the learned trial court passed a consent decree
and closed the proceedings.
. In view of the facts, which I have
elaborately narrated herein above, the questions
arise, - whether the trial court had applied its
mind before affixing the seal of the court over
the compromise terms allegedly entered into by
the parties thereto and whether has recorded its
satisfaction regarding the lawfulness and
genuineness of the compromise so arrived at
between the parties and whether such a decree can
be accepted and termed as a consent decree.?
18) From the material on record it is
discernible that the trial court did not take any
pains to even cursorily read the averments in the
22 AO 30/2016
plaint. Though I have earlier also mentioned as
about the cause of action for filing Regular
civil Suit No.499/2014 by the present appellant,
I deem it appropriate to reproduce herein below
para 7 of the suit plaint in the aforesaid suit,
which reads thus, -
" 7½ nkO;kl dkj.k %& gs dh] lnjhy izdj.kkrhy
oknhus fnukad [email protected]@2014 jksth oknxzLr tfeuhps
ljlfujl ekukus okVi d:u R;kpk dk;nsf'kj [email protected] fgL;kpk
i`%Fkd rkck ns.;kph fouarh dsyh vlrk izfroknh ;kauh Li"V
udkj fnyk- Eg.kqu oknhl lnjpk nkok ns.;kl dkj.k ?kMysys
vkgs- "
The appellant - plaintiff was thus compelled to
file the aforesaid civil suit claiming partition
of the suit properties since the defendants
therein, i.e. father and brothers of the
appellant, despite the request from the
plaintiffs, had flatly refused on 28th December,
2014 to give his 1/4th share in the suit
properties and separate possession thereof. In
this background, it would be material to see the
further events which had happened in the
aforesaid civil suit. With the cost of
23 AO 30/2016
repetitions, it has to be stated that the
defendants, who as alleged by the
appellant/plaintiff, had flatly refused to
consider the request of the appellant to give him
his 1/4th share in the suit properties, appeared
in the suit for partition without waiting for any
formal notice from the Court and suo-motu
appeared in the said suit on the very date of
filing of the suit and within few hours of filing
of such suit by the appellant-plaintiff. Not
only that, the defendants appeared in the
aforesaid civil suit, the compromise terms were
also settled on the same day and the consent
decree was obtained from the learned Civil Judge
on the same day. Had the learned Civil Judge
perused the suit plaint, and more particularly
para 7 thereof, he would have certainly not made
any haste in accepting the terms of compromise
and would also not have instantaneously passed
the consent decree. The learned Trial Court was
supposed to get satisfied about genuineness of
the compromise before passing the consent decree
24 AO 30/2016
on the basis of the said compromise. From the
events, as noticed to have happened, no further
proof is required to draw an inference that it
was all camouflage. In fact, it was a joint
venture of the present appellant and the present
Respondent Nos.4 to 6 to obtain a seal of the
Court on an arrangement mutually arrived at in
between them as regards to the partition of suit
properties amongst them.
19) The present appellant and the present
Respondent Nos. 4 to 6 were obviously aware of
the previous proceedings, i.e. Regular Civil Suit
No.61/2014 and 376/2014. They were also aware of
had made an application seeking intervention in
Regular Civil Suit No.376/2014, claiming that
they were having share in the suit properties.
From the material on record, it is further clear
that the properties, which were the subject
matter of Regular civil Suit No. 499/2014 were
involved in the earlier aforesaid two civil
25 AO 30/2016
suits. However, neither in the suit plaint of
Regular Civil Suit No. 499/2014 nor in the terms
of compromise, anything is stated about the said
previous proceedings. In fact, all those facts
ought to have been disclosed either in the suit
plaint or at the time of entering into the
compromise. Suppressing all those facts, the
consent decree was obtained by the present
appellant and Respondent Nos. 4 to 6 from the
learned Civil Judge and when in the First Appeal,
the first appellate court has set aside the said
decree and remitted back the matter to the trial
court for its fresh decision by directing
impleadment of present Respondent Nos. 1 to 3 in
the said suit, now a plea has been taken by the
appellant that the appeal so filed before the
first appellate court could not have been
entertained by the said court in view of the
specific bar provided under Section 96(3) of the
C.P.C., since the decree under challenge was a
consent decree.
26 AO 30/2016
20) The consent decree undisputedly cannot
be challenged by a third party under Section
96(3) of C.P.C. and the only remedy for such a
person is to approach the same Court which has
passed the said decree or to file a separate suit
claiming declaration that the decree so passed in
the said suit, is not binding on him. The
question is, whether the bar so provided under
Section 96(3) of C.P.C. would be applicable in
the present case and whether the decree involved
in the present appeal can, in fact, be termed as
a consent decree?
. From the facts on record, I am afraid
the decree so passed by the trial court termed as
a consent decree by the present appellant as well
as present Respondent Nos. 4 to 6 can be held to
be a consent decree merely because the trial
court has affixed its seal over the compromise
arrived at between present appellant and
Respondent Nos. 4 to 6 in respect of the suit
properties.
27 AO 30/2016
21) As has been observed by the learned
first appellate court, present Respondent Nos. 1
to 3, prima facie, have interest in the suit
properties being heirs of deceased Rajendra, who
was son of Tulshiram and grand-son of Govind,
i.e. original ancestor. I fully agree with the
observations made by the learned first appellate
court that the manner in which the present
appellant and Respondent Nos. 4 to 6 obtained the
compromise decree is highly objectionable and the
said attempt on their part was laced with a
design to deprive present Respondent Nos. 1 to 3
from adjudication on their rights. The decree
stated to be a consent decree is thus not a
consent decree, but a collusive decree.
22) "Collusion" is defined in Wharton's Law
Lexicon as follows, -
"Collusion in judicial proceedings
is a secret agreement between two
persons that one should institute a
suit against the other, in order to
obtain the decision of a judicial
28 AO 30/2016
Tribunal for some sinister purpose
23) As observed by the High Court of Mysore
in the case of Tirukappa Vs. Kamalamma - AIR 1966
Mysore 1, "Collusion" means agreement or
understanding between the parties, whereby the
court is made to believe in the existence or
truth of the circumstances which to the
knowledge of the parties are non-existent or
false.
24) The hot haste committed in proceeding
with the civil suit and quick succession of
events which all happened on a single day,
i.e. 29th December, 2014 and which resulted in
passing of a `consent decree' apparently
demonstrate and lead to only one conclusion
that the present appellant and present
respondent Nos. 4 to 6 were in collusion with
each other for the purpose of obtaining the
said decree. It is writ large that the only
29 AO 30/2016
purpose behind it was to deprive the present
Respondent Nos. 1 to 3 from adjudicating their
rights in the suit properties.
25) Merely because a decree is stated to
be a `consent decree', it would not ipso facto
operate as a bar contained in Section 96(3) of
C.P.C. for filing an appeal against it by a
person not party to the said suit. It would
be open for the appellate court in appropriate
cases to consider the contentions raised by
the third party along with the pleadings of
the parties to the lis and examine the
circumstances leading up to the compromise and
resulting into passing of a consent decree to
find out whether the compromise arrived at
between the parties is genuine and lawful or
otherwise.
26) For the reasons stated above and
after having considered the entire material on
record, I have no hesitation in recording a
finding that the decree which has been termed
30 AO 30/2016
as consent decree by the present appellant,
cannot be, in any case, held to be a consent
decree. The bar provided under Section 96(3)
of C.P.C. would, therefore, not apply in the
present case. Since the appellant and
Respondent Nos. 4 and 6 in collusion with
each other have procured the decree from the
trial court, Respondent Nos. 1 to 3 herein
were having every right to challenge the said
decree by filing an appeal before the District
Court under 96(1) of Civil Procedure Code, as
they were claiming interest in the suit
properties and were also claiming to be
prejudicially affected because of the decree
passed by the trial Court. The first
appellate Court has thus, not committed any
error in allowing the appeal by setting aside
the decree passed by the Trial court. It
further does not appear to me that the Trial
court has committed any error in issuing the
31 AO 30/2016
further direction to original plaintiff to
implead the appellants in the appeal before
it, i.e. present Respondent Nos. 1 to 3, as
party to the suit before the trial court in
view of the finding recorded by it that
present Respondent Nos. 1 to 3, prima facie,
have interest in the suit properties being the
heirs of Rajendra, who was son of Tulshiram
and grand-son of Govind. I, therefore, do
not see any reason to cause any interference
in the impugned judgment.
. It is, however, clarified that the
observations made by this court as about the
rights of Respondent Nos. 1 to 3 in the suit
properties, are all prima facie in nature.
Whether Respondent Nos. 1 to 3 possess any
rights in the suit properties is left to be
adjudicated by the trial court on its own
merits without getting influenced by the prima
facie observations made by this court.
32 AO 30/2016
27) The present appeal being devoid of
merits stands dismissed with costs. Pending CA
if any stands disposed of.
(P.R.BORA)
JUDGE
bdv/
fldr 5.10.16
