Chattisgarh High Court

Sushil Chandra Pagariya vs Shri Gajraj Pagariya on 26 August, 2022

                                    1

                                                                     AFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                           CR No. 36 of 2019

   1. Sushil Chandra Pagariya S/o Late Shri Maangilal Pagariya, Aged
       About 59 Years, R/o 5th Floor, Pent House, Mahaveer Plaza
       (Wrongly Mentioned as Mahawari Plaza in the Impugned
       Order), Ring Road No.1, Behind Devi Lakshmi Nursing Home,
       Tagore Nagar, Raipur, Tehsil And District- Raipur,
       Chhattisgarh..............(Original Defendant No.1)

   2. Shreyansh Pagariya, aged about 29 years, S/o Shri Sushil
       Chandra Pagariya (Wrongly Mentioned as S/o Late Shri
       Maangilal Pagariya in the Impugned Order), R/o 5th Floor,
       Mahaveer Plaza, Ring Road, Shailendra Nagar, Raipur, Tehsil
       And District- Raipur, Chhattisgarh..............(Original Defendant
       No.2)

                                                           ---- Petitioner

                                Versus

   1. Shri Gajraj Pagariya, aged about 61 years (not mentioned in the
       impugned order), S/o Late Shri Maangilal Pagariya R/o 28
       Vivekanand Nagar, Raipur, Tehsil And District- Raipur,
       Chhattisgarh.............(Original Plaintiff No.2)

   2. M/s Maangilal Pagariya, A Partnership Firm, Pagariya House, Bus
      Stand, Pandri, Raipur, Tehsil And Disrtict- Raipur,
      Chhattisgarh.........(Original Plaintiff No.1)

   3. Smt. Ugam Devi,aged about 81 years, Wd/o Late Shri Maangilal
       Pagariya R/o 28 Vivekanand Nagar, Raipur, Tehsil And District-
       Raipur, Chhattisgarh...........(Original Plaintiff No.3)

   4. State Of Chhattisgarh Through Collector Raipur, Tehsil And
       District- Raipur, Chattisgarh..............(Original Defendant No.3)

                                                         ---- Respondent

For Applicants Mr. Sumesh Bajaj, Advocate. He appears along with applicant No.2 For Respondents 1to 3 Mr. Kishore Bhaduri, Senior Advocate with Mr. Pankaj Singh, Advocate For State/Respondent Mr. Trivikram Nayak, Panel Lawyer No.4

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board

26/8/2022

 Heard.

 This revision petition has been filed against the order dated

3.12.2018 passed by the Ninth Civil Judge Class-II, Raipur (CG)in

MJC (unregistered), by which, the Court below has rejected an

application under Section 152 read with Sections 153 and 151 of

the Code of Civil Procedure for modification of the compromise

decree dated 13.2.2018 passed in Civil Suit No.245-A/2017, on

the ground that the same is not maintainable. Hence, this

revision.

 The brief facts of the case are that Civil Suit No.245-A/2017 was

filed by non-applicants 1, 2 & 3 against the applicants and non-

applicant No.4 for declaration that the suit property is in their

exclusive ownership and for permanent injunction. The plaint

was filed on 7.9.2017 and the suit was listed on 9.3.2018 for

filing of the written statement/issues. Meanwhile, an urgent

hearing application as also an application under Order 23 Rule 3

read with Section 151 of the CPC along with the annexures were

filed on 13.2.2018. On the said date, applicant No.1 was in

custody and his bail application was pending before the High

Court. Applicant No.1 was brought to the concerned court from

jail in another Arbitration Case scheduled in the Court of District

Judge on 13.2.2018. Applicant No.2 was also not in Raipur on

13.2.2018 as he was in Bilaspur for hearing of his father's bail

petition listed before the High Court. However, applicant No.2

reached Raipur in the late evening and he was directly called in

the Civil Court. Applicant No.1 was produced at about 4:00 p.m.

on 13.2.2018 before the Court. The applicants were assured

and allured that the non-applicants/plaintiffs are willing to

settle the family dispute and further, if the dispute ends ,

applicant No.1 will also be released from custody. Hence, the

applicants had no choice but to sign such application as it was a

question of life and death for applicant No.1. On the same day,

plaintiffs Gajraj Pagariya and Smt. Ugam Devi and

defendant/applicant No.1 Sushil Chandra Pagariya were

examined and the compromise decree was passed on 13.2.2018

itself.

 The criminal case against applicant No.1 finally came to an end

on 6.7.2018 and thereafter, the applicants started scrutinising

the details of the properties contained in the compromise

application. The following major illegalities were found in the

compromise application :

(i) One property situated at Vile Parle , Mumbai was

originally in the name of a Company i.e. Shreyansh Finvest

Pvt. Ltd. and as per the earlier family settlement, it was

agreed that this property would be sold and its sale

proceeds would be used in discharging the debts of the

family. After passing of the compromise decree on

13.2.2018, Arbitration Case No.29/17 was settled in the

Lok Adalat, in which, a compromise decree was passed on

22.4.2018 in the Court of District Judge, Raipur.

(ii) In the compromise application dated 13.2.2018,

many properties were illegally put in the share of the

plaintiffs/non-applicants, which were not even in the

names of the family members and were recorded in the

names of various others. Neither the consent of such

owners were obtained nor their respective signatures

were taken on the compromise application. Therefore,

the applicants were given in share such properties which

could not even be parted with in the compromise

application.

 For such properties, the Assistant Commissioner, Income Tax,

(Benami Prohibition), Raipur has issued an order of provisional

attachment under the provisions of the Prohibition of Benami

Property Transactions Act, 1988 on 27.2.2019. When such major

irregularities came to the notice of the applicants, they have

moved an application for modification of the compromise

decree on 1.9.2018, which was dismissed by the impugned

order.

 Heard learned counsel for the parties and perused the record.

 Indisputably, the matter was settled between the parties on

the basis of an application under Order 23 Rule 3 read with

Section 151 of the CPC and thereby, a consent decree was

passed in Civil Suit No.245-A/2017 on 13.2.2018.

 As the law is well settled in a catena of judgments rendered by

Hon'ble the Supreme Court and recently in the matter of Sree

Surya Developers & Promoters Vs. N. Sailesh Prasad (2022) 5

SCC 736, Hon'ble the Supreme Court has reiterated the view

that a party to a consent decree based on a compromise to

challenge the compromise decree on the ground that the

decree was not lawful i.e. it was void or voidable, has to

approach the same Court, which recorded the compromise and

a separate suit is not maintainable. The said judgment referred

the earlier judgment rendered in the matter of Pushpa Devi

Bhagat Vs. Rajinder Singh, (2006) 5 SCC 566, in which the

following was held vide para 17 :

"17. 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.

(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) of 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 3-A.

(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 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 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. . .........................."

 In view of the aforesaid legal aspect, the revision is disposed of

reserving liberty to the parties to move a fresh application, if so

advised, before the competent Court in accordance with law.

 Consequently, all the pending applications are also disposed of.