Hashmukhbhai Thakorbhai Desai ... vs Bhikhubhai Chhaganbhai Desai
2022 Latest Caselaw 7187 Guj

    C/SCA/6091/2015                            ORDER DATED: 18/08/2022




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 6091 of 2015
                             With
   CIVIL APPLICATION (FOR VACATING INTERIM RELIEF)
                        NO. 1 of 2019
                               In
      R/SPECIAL CIVIL APPLICATION NO. 6091 of 2015
======================================
HASHMUKHBHAI THAKORBHAI DESAI (DECEASED) & 6 other(s)
                            Versus
        BHIKHUBHAI CHHAGANBHAI DESAI & 13 other(s)
======================================
Appearance:
MR CHIRAG B PATEL(3679) for the Petitioner(s) No.
1.1,1.2,1.3,2,3,4,5,6,7
 for the Respondent(s) No. 5.1,5.2,5.3,7.1,7.2,7.3,7.4,8.1,8.2
DECEASED LITIGANT for the Respondent(s) No. 5,7,8,9
DEVANGI B SOLANKI(8888) for the Respondent(s) No. 10
MR AMIT V THAKKAR(3073) for the Respondent(s) No. 12
MR NV GANDHI(1693) for the Respondent(s) No. 1,2,3,4
MR RUTUL P DESAI(6498) for the Respondent(s) No. 6,9.1,9.2
MS KAJAL R SHINGADIYA(8551) for the Respondent(s) No. 10
NOTICE SERVED BY DS for the Respondent(s) No. 11,13,14
======================================

 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                         Date : 18/08/2022

                           ORAL ORDER

[1.0] This petition is filed under Article 226 as also under Article 227 of the Constitution of India challenging the judgment and decree dated 25.08.2011 passed by the 9 th Additional Senior Civil Judge, Surat in Special Civil Suit No.412 of 2011 as also the order passed below Exh.15, which is compromise purshis filed by the parties before the concerned Court, which is recorded by the said Court on different

C/SCA/6091/2015 ORDER DATED: 18/08/2022

grounds including the ground of fraud committed upon the Court where the petitioners are party to the said compromise deed.

[2.0] Attention of the learned advocate for the petitioners is drawn to the full Bench decision of this Court in the case of Sakina Sultanali Sunesara (Momin) & Ors. Vs. Shia Imami Ismaili Momin Jamat Samaj & Ors. reported in 2020 (1) GLR 586 wherein it is held that any person aggrieved by the decree based on compromise where he is also a party to it, he has to file an application under the proviso to Rule 3 of Order XXIII of the Code of Civil Procedure, 1908 disputing such compromise, on consideration of issues referred to it, relying on the decision of the Supreme Court in the case of R. Rajanna Vs. S.R. Venkataswamy and Ors reported in 2014 (15) SCC 471 wherein it is held "no sooner a question relating to the lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of the compromise, it is that Court and that Court alone who can examine and determine the question", the full Bench in the aforesaid decision has considered various decisions of the Supreme Court and ultimately concluded on the questions referred to it by saying that "in case of a decree passed by the trial Court on the basis of the compromise between the parties (consent decree), the remedy available to the aggrieved party, who was party to the suit would be to file an application under the proviso to Rule 3 of Order XXIII of the Code of Civil Procedure, 1908 disputing such compromise".

[3.0]         In view thereof, this Court while exercising the





        C/SCA/6091/2015                              ORDER DATED: 18/08/2022

jurisdiction either under Article 226 or Article 227 of the Constitution of India would not like to entertain such petition at the behest of the petitioner, who was party to the compromise itself to whom the remedy, as aforesaid, is already available. Hence, this petition is hereby rejected. Notice is discharged. Ad-interim relief granted earlier stands vacated. However, a request is made to extend the ad-interim relief granted by this Court for a period of two weeks hereof, which is acceded to as it has continued for a period of seven years uptill now and it be continued for a further period of two weeks hereof. It is made clear that this Court has not gone into the merits of the case in this petition.

[4.0] If any application is preferred, as aforesaid, before the competent Court, it may be determined as expeditiously as possible and as requested by the learned advocate for both the sides, preferably within a period of three months. It shall be determined on its own merits in accordance with law. Learned advocates for both the parties have assured that they will participate in the proceedings filed, if any, without wasting any time.

Civil Application No.1 of 2019

In view of the order passed in Special Civil Application No.6091 of 2015, no order in the Civil Application and the same stands disposed of.

(UMESH A. TRIVEDI, J.)

siji