Shri Suresh S/O Daulatrao ... vs Shri Ganesh S/O Rajaram Bodkhe
2017 Latest Caselaw 7059 Bom

        J-cra86.17.odt                                                                                                       1/5


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                        CIVIL REVISION APPLICATION No.86 OF 2017


        Shri Suresh s/o. Daulatrao Wirulkar,
        Aged about 64 years,
        Occupation : Retired,
        R/o. "Gajanan Krupa", Plot No.282, 
        Sector 19, Koparkhairne, 
        Near Jimmy Tower,  New Mumbai-06.                                             :      APPLICANT

                           ...VERSUS...

        Shri Ganesh s/o. Rajaram Bodkhe,
        Aged about 66 years,
        Occupation : Business,
        R/o. Plot No.50, Dyaneshwar Nagar, 
        Manewada Road, Nagpur.                                                         :      NON-APPLICANTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri S.S. Sitani, Advocate for the Applicant.
        Shri U.A. Gosavi, Advocate for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                       CORAM  :   S.B. SHUKRE, J.

th DATE : 13 SEPTEMBER, 2017.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith.

2. Heard finally by consent.

3. By this revision application, the legality and the correctness

of the order dated 6.4.2017, passed on objection application (Exh.-36)

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filed by the applicant-judgment debtor has been questioned.

4. According to the applicant, the compromise decree regarding

specific performance of contract passed in Special Civil Suit

No.303/2008 between the applicant, the judgment debtor and the

non-applicant, the decree holder is illegal as the compromise agreement

between the parties being devoid of any consideration was void in terms

of Section 10 and Section 25 of the Indian Contract Act and therefore,

was hit by the explanation given to order XXIII Rule 3 of the Code of

Civil Procedure. The objection application has been rejected by the

executing Court, the Court of Civil Judge, Senior Division, Nagpur on the

ground that the decree passed by Lok-Adalat on the basis of mutual

settlement between the parties is final in terms of Section 21 of the Legal

Services Authorities Act and therefore, it is not amenable to any such

challenge as raised in the objection application. The executing Court was

also of the view that there is a distinction between an agreement devoid

of consideration, which is void in law and the compromise arrived at

between the disputing parties in a pending civil suit and that to a

compromise agreement between the parties, the rigors of valid

agreement between the parties would not apply.

5. Learned counsel for the applicant submits that a bare perusal

of the compromises application jointly filed by both the parties would

show that there is not even a whisper about the price of the agricultural

J-cra86.17.odt 3/5

field, the suit property, being paid by the decree holder and therefore,

one has to say that this compromise application executed by both the

parties is not accompanied by any consideration and as such void in law.

6. Learned counsel for the non-applicant disagrees. He submits

that the consideration between the parties is implicit in this agreement.

7. Section 2(d) of the Indian Contract Act, 1872 defines

consideration. It is something done or promised to be done or something

not done or something promised not to be done by the promisee at the

desire of the promiser. This definition clearly shows that the

consideration could be monetary as well as in kind or in the nature of

some sacrifice made by the promisee at the desire of the promiser.

Having understood the concept of consideration under the Indian

Contract Act, now we would have to take a look at the compromise

application signed and executed by the parties.

8. It is seen from the compromise application that even though

there is no mention in it about payment of price of the suit properly, the

deficiency is made up by what is stated in it's paragraph 3(1). Contents

of this para disclose that the defendant (applicant-judgment debtor) has

shown his readiness to execute the sale-deed in respect of 1/4 th share

out of his 1/3rd share from the property bearing Khasra No.81/2, P.H.

No.46 situated at mouza Isasani. So, this is an act promised to be done

by the defendant or the applicant who is the promisee in the instant case.

J-cra86.17.odt 4/5

The respondent or the decree holder is the promiser in this case and as

seen from the prayer clause, has expressed a desire that in lieu of the

promise so given by the promisee, the Court be pleased to grant a

compromise judgment and decree as per the terms and conditions

mentioned in the application. These mutual acts performed or promised

to be performed by both parties from the consideration for what each of

the parties to the compromise application has agreed to do in the present

case. Therefore, this is not a case wherein one can surely say that the

compromise application was devoid of any consideration, as the term is

defined in law.

9. In the case of Namdeo Hambira Babar and others vs.

Gajanan Bhauso Babar and others, reported in 2015(1) Mh.L.J. 932,

relied upon by the learned counsel for the applicant, learned Division

Bench of this Court has held that just because consent terms are filed

before the Civil Court, the Civil Court is not obliged to accept the consent

terms mechanically and the Civil Court is required to examine whether

the compromise is lawful. There can be no dispute about the proposition

of law laid down in this case by the learned Division Bench of this Court.

Unless the compromise arrived at between the parties is ex facie seen to

be lawful, no decree for giving effect to the compromise could be passed

by a Civil Court. In the case of Namdeo (supra) one of the consent terms,

it appears, was against the provisions of law because it was agreed by the

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petitioner therein to surrender tenancy rights in favour of some of the

respondents, which was not permissible in law. In this background, the

learned Division Bench of this Court held that it was improper on the

part of the Civil Court to have mechanically passed a decree in terms of

consent terms. In the instant case, the compromise application filed by

both the parties does not reflect any agreement which is unlawful or

invalid. The objection in this regard was that the agreement was devoid

of any consideration and it has been found by this Court that this

agreement was very much accompanied by consideration, as defined in

Section 2(d) of the Indian Contract Act. Therefore, no direct assistance

from the said case of Namdeo (supra) could be solicited in the present

case by the applicant. It would then also follow that the provisions of

explanation to Order XXIII Rule 3 as well as Section 10 and 25 of the

Indian Contract Act would not be attracted in the present case.

10. In the result, I find that the impugned order, though passed

for different reasons, could not be seen to be illegal or containing any

material irregularities. There is no merit in this application.

11. The application stands rejected.

12. Parties to bear their own costs.

JUDGE okMksns