Chattisgarh High Court
Shiv Kumar vs Mahesh Kumar on 27 March, 2025
1
SMT
NIRMALA
RAO
2025:CGHC:14786
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 469 of 2024
1 - Shiv Kumar S/o Late Sheshnarayan Vaishnav, Aged About 68 Years
R/o Village Birhanpur Khurd, Tehsil Gandai, District- Khairagarh-
Chhuikhadan- Gandai (C.G.)
2 - Krishna Kumar S/o Late Sheshnarayan Vaishnav, Aged About 68
Years R/o Village Birhanpur Khurd, Tehsil Gandai, District- Khairagarh-
Chhuikhadan- Gandai (C.G.)
3 - Ganesh Kumar S/o Late Sheshnarayan Vaishnav, Aged About 68
Years R/o Village Birhanpur Khurd, Tehsil Gandai, District- Khairagarh-
Chhuikhadan- Gandai (C.G.)
... Petitioners
Versus
1 - Mahesh Kumar S/o Late Sheshnarayanj Vaishnav, Aged About 55
Years R/o Village Birhanpur Khurd, Tehsil Gandai, District- Khairagarh-
Chhuikhadan- Gandai (C.G.)
2 - Rishi Kumar S/o Late Sheshnarayan Vaishnav, Aged About 72 Years
R/o Ward No. 07 Devki Nagar Gandai, Tehsil Gandai, District-
Khairagarh-Chhuikhadan- Gandai (C.G.)
3 - Smt. Chanda Devi, D/o Late Sheshnarayan Vaishnav, Aged About 74
Years R/o Village And Post Tipani, P.S. Khamhariya, Tehsil Saja, District
Bemetara (C.G.)
4 - Smt. Bimla Devi D/o Late Sheshnarayan Vaishnav, And W/o Shriram
Gagurai Vaishnav, Aged About 70 Years R/o 194 A Sector Indrapuri,
B.H.E.L. Bhopal, (M.P.)
5 - Smt. Sushila Devi D/o Late Sheshnarayan Vaishnav, And W/o
Laxmisharan Vaishnav, Aged About 65 Years R/o Rewadih Ward Nagar
Nigam Rajnandgaon, District Rajnandgaon (C.G.)
-2-
6 - State Of Chhattisgarh Through Collector, Rajnandgaon, District
Rajnandgaon (C.G.)
---- Respondents
-------------------------------------------------------------------------------------------------
For Petitioners : Shri Priyank Rathi, Advocate.
For Respondent No.1 : Ms. Naushina Afrin Ali, Advocate
alongwith Shri Topilal Bareth,
Advocate.
For Respondent No.6 : Shri Lav Sharma, P.L.
-------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
27.03.2025
1. Heard on admission.
2. The petitioners have challenged the order passed by the learned
Civil Judge, Class-II, Chhuikhadan, District Rajnandgaon in MJC
No. 1 of 2023 dated 3.2.2024 whereby an application moved by
the petitioners under Section 151 of CPC has been rejected.
3. The facts of the present case are that the plaintiffs/petitioners filed
a civil suit for partition and declaration seeking declaration that the
will deed executed by the mother of the parties in favour of
defendant No.1/Mahesh Kumar is null and void. The suit property
is described in Schedules A, B and C. Initially, the suit property
was recorded in the name of late Shri Sheshnarayan. After his
death, his wife Smt. Dharam Kunwar Bai was looking after the
property until her death on 23.12.2020. On 12.6.2014, late Smt.
Dharam Kunwar Bai executed a will deed in favour of defendant
No.1 - Mahesh Kumar. According to the plaintiffs, the will is
forged, as no such will deed was executed by her in favour of
defendant No.1. During the pendency of the suit, the parties
decided to enter into a compromise under Order 23 Rule 3 of
CPC, and an application was filed on 12.7.2022. The said
application was withdrawn by the parties, and a similar application
was moved on 16.2.2023. The application was accompanied by
affidavits of the parties. Learned trial Court recorded statements of
both parties, and a compromise decree was drawn on 17.2.2023,
in terms of the application for compromise under Order 23 Rule 3
of CPC. The petitioners/plaintiffs moved an application under
Section 151 of CPC, inter-alia, on the ground that the properties
mentioned in clauses (छ) and (ज) could not be divided evenly
between the plaintiffs and defendants due to a typographical
mistake. The said application has been rejected by the learned
Court below vide order dated 3.2.2024.
4. Learned counsel for the petitioners would submit that the
application moved under Order 23 Rule 3 of CPC dated 16.2.2023
would make it clear that in all clauses except (छ) and (ज), the
description of property and division between the parties were
expressly mentioned, however, in clauses (छ) and (ज), the
property could not be divided between the petitioners and
respondents. He would contend that therefore, an application was
moved to rectify this mistake, which was rejected by the learned
trial Court. In support of his submissions, he placed reliance on the
judgment passed by the Hon'ble Supreme Court in the matter of
Compack Enterprises India Private Limited vs. Beant Singh,
(2021) 3 SCC 702.
5. On the other hand, learned counsel for respondent No.1 would
oppose the submissions made by counsel for the petitioners. She
would submit that the property mentioned in clause (छ) is already
recorded in the name of plaintiff No.1 and defendant No.1 by virtue
of the will deed, therefore, there was no need to divide it amongst
the other members of the family. She would further submit that the
statements of the parties were recorded before the Court below
and no objection was raised, and after considering the application
moved under Order 23 Rule 3 of CPC and the statements of the
parties, the learned trial Court passed the compromise decree on
17.2.2023. She would also submit that there was no typographical
mistake, the terms and conditions of the application moved under
Order 23 Rule 3 of CPC were recorded intentionally, and parties
were aware of these facts. She placed reliance on the judgment of
the Hon'ble Supreme Court rendered in the matter of Ajanta LLP
vs. Casio Keisanki Kabushiki Kaisha D/B/A Casio Computer
Company Limited and Another, (2022) 5 SCC 449.
6. I have heard learned counsel for the parties and perused the
documents present on the record.
7. In the matter of Beant Singh (supra), the Hon'ble Supreme Court
held that consent decrees are intended to create estoppel by
judgment against the parties, thereby putting an end to further
litigation between the parties. It was also held that a consent
decree would not serve as an estoppel, where the compromise
was vitiated by fraud, misrepresentation, or mistake. The relevant
paras 19 & 20 are as under:-
"19. Before adverting to the specific contentions raised by
the learned senior counsel for the Petitioner, it may be
useful to briefly summarise the law governing consent
decrees that shall inform our conclusions on the present
matter. It is wellsettled that consent decrees are intended
to create estoppels by judgment against the parties,
thereby putting an end to further litigation between the
parties. Resultantly, this Court has held that it would be
slow to unilaterally interfere in, modify, substitute or
modulate the terms of a consent decree, unless it is
done with the revised consent of all the parties thereto.
(Gupta Steel Industries v. Jolly Steel Industries Pvt. Ltd.
& anr., (1996) 11 SCC 678; Suvaran Rajaram Bandekar
& ors. v. Narayan R. Bandekar & ors., (1996) 10 SCC
255).
20. However, this formulation is far from absolute and
does not apply as a blanket rule in all cases. This Court,
in Byram Pestonji Gariwala v. Union Bank of India & ors.,
(1992) 1 SCC 31, has held that a consent decree would
not serve as an estoppel, where the compromise was
vitiated by fraud, misrepresentation, or mistake. Further,
this Court in the exercise of its inherent powers may also
unilaterally rectify a consent decree suffering from
clerical or arithmetical errors, so as to make it conform
with the terms of the compromise."
8. In the matter of Ajanta LLP (supra), it was held that the
compromise decree is passed after recording the consent of the
parties, and any deviation from the terms and conditions of such a
decree would result in estoppel against the parties if any of them
deviates from the terms and conditions of the decree. The relevant
paras 20, 21, 22 & 24 are reproduced herein below:-
"20. Resolving a dispute pertaining to a compromise P
a g e 21 | 25 arrived at between the parties, this Court
in Shankar Sitaram Sontakke & Anr., AIR 1954 SC 352
held as under:
"7. If the compromise was arrived at after due
consideration by the parties and was not vitiated
by fraud, misrepresentation, mistake or
misunderstanding committed by the High Court -
the finding which was not interfered with by the
High Court - it follows that the matter which once
concluded between the parties who were dealing
with each other at arm's length cannot now be
reopened."
21. A judgment by consent is intended to stop litigation
between the parties just as much as a judgment
resulting from a decision of the Court at the end of a
long drawn- out fight. A compromise decree creates an
estoppel by judgment. It is relevant to note that in
Byram Peston Gariwala, (1992) 1SCC 31, this Court
held that the Appellant- therein did not raise any doubt
as to the validity or genuineness of the compromise
nor a case was made out by him to show that the
decree was vitiated by fraud or misrepresentation.
While stating so, this Court dismissed the Appeal.
22. A consent decree would not serve as an estoppel,
where the compromise was vitiated by fraud,
misrepresentation, or mistake. The Court in exercise of
its inherent power may rectify the consent decree to
ensure that it is free from clerical or arithmetical errors
so as to bring it in conformity with the terms of the
compromise. Undoubtedly, the Court can entertain an
application under Section 151 of the CPC for
alterations/ modification of the consent decree if the
same is vitiated by fraud, misrepresentation, or
misunderstanding.
24. The High Court applied its mind and passed a
decree in terms of the settlement agreement dated
16.05.2019. Though, the High Court dismissed the
Application by refusing to entertain the Application on
the ground that it was filed under Section 152 of the
CPC, we have considered the submissions of the
parties to examine whether the Appellant has made
out a case for modification of the decree by treating
the Application as one under the proviso to Order 23
Rule 3 read with Section 151 of the CPC. There is no
allegation either of fraud or misrepresentation on the
part of the Respondent. We are unable to agree with
the Appellant that there was a mistake committed
while entering into a settlement agreement due to
misunderstanding. Correspondence between the
advocates for the parties who are experts in law would
show that there is no ambiguity or lack of clarity giving
rise to any misunderstanding. Even assuming there is
a mistake, a consent decree cannot be modified/
altered unless the mistake is a patent or obvious
mistake. Or else, there is a danger of every consent
decree being sought to be altered on the ground of
mistake/ misunderstanding by a party to the consent
decree."
9. On a perusal of the application moved under Order 23 Rule 3 of
CPC dated 16.2.2023 and the statements of parties recorded
before the learned Court below, it is apparent that there was no
fraud, misrepresentation, or mistake on the part of plaintiff No.1 or
defendant No. 1. The application was signed by both parties and
it was supported with affidavits. The statements were recorded
and no objection was raised by any of the members before the
learned Court below.
10. It appears that the property (छ) was recorded in the name of
plaintiff No.1 and defendant No.1 by virtue of the will deed;
therefore, it was not divided between the other members of the
family. The petitioners/plaintiffs moved an application under
Section 151 of CPC for correction of the decree, but the same was
not permissible, and it was not a result of fraud.
11. Taking into consideration the law laid down by the Hon'ble
Supreme Court, I do not find any good ground to interfere with the
order passed by the learned trial Court. Consequently, this petition
fails and is hereby dismissed. No cost(s).
12. The interim order granted earlier is hereby vacated.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi
