Gujarat High Court

Patel Chiragbhai Bhaskarbhai vs Nitaben Kamleshbhai Shah on 10 July, 2025

                                                                                                              NEUTRAL CITATION




                               C/FA/2477/2023                                ORDER DATED: 10/07/2025

                                                                                                              undefined




                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 2477 of 2023

                                                       With
                                   CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                                        In R/FIRST APPEAL NO. 2477 of 2023
                                                       With
                        CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
                                                   NO. 2 of 2023
                                        In R/FIRST APPEAL NO. 2477 of 2023
                       ==========================================================
                                           PATEL CHIRAGBHAI BHASKARBHAI & ANR.
                                                          Versus
                                             NITABEN KAMLESHBHAI SHAH & ORS.
                       ==========================================================
                       Appearance:
                       MR SHEGUN B CHOKSHI(12790) for the Appellant(s) No. 1,2
                       MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2
                       GANDHI LAW ASSOCIATES(12275) for the Defendant(s) No. 1,2
                       REFUSED SERVED (N)(10) for the Defendant(s) No.
                       10,11,12,13,14,15,16,17,3,4,5,6,7,8,9
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                         Date : 10/07/2025

                                                          ORAL ORDER

1. The present First Appeal is filed under Section

96 of the Code of Civil Procedure, 1908 by the appellants

- original defendant Nos.16 and 17 challenging the

judgment and decree dated 06.05.2023 passed by learned

20th Additional Senior Civil Judge, Vadodara in Special

Civil Suit No.283 of 2017.

NEUTRAL CITATION

C/FA/2477/2023 ORDER DATED: 10/07/2025

undefined

2. Heard learned advocate Mr.Shegun Chokshi with

learned advocate Mr.Kush Bhvish for learned advocate

Mr.S.P.Majmudar for the appellants and learned senior

counsel Mr.Manish Bhatt with learned advocate Isa Hakim

and learned advocate Nitya Joshi for the respondents.

3. Since the issue involved in the present First

Appeal is purely a question of law, with request and

consent of learned advocates for the parties, the Appeal is

taken up for final hearing.

4. Brief facts narrated in the present First Appeal

are as under:

4.1 The land in question is situated at mauje:

Dumad, Dist.: Vadodara bearing Revenue Survey

No.1321/1, Block No.915 admeasuring 01-05-58 H-RA-Sq.

Mtrs. which is referred as suit property.

NEUTRAL CITATION

C/FA/2477/2023 ORDER DATED: 10/07/2025

undefined

4.2. The present appellants filed Special Civil Suit

No.85 of 2016 seeking relief by way of specific

performance of an Agreement to Sell dated 02.01.2016,

executed between the appellants and present respondent

Nos.3 to 6 with regard to suit property. During the

pendency of the suit, parties settled the dispute by way of

a compromise pursis submitted at Ex.12 and a consent

decree came to be passed on 26.04.2016. Pursuant to the

said decree, a registered sale deed was executed between

the appellants and respondent Nos.3 to 6. Subsequently,

respondent Nos.1 and 2 filed Special Civil Suit No.283 of

2017 seeking a relief of setting aside the consent decree

dated 26.04.2016 and further prayed for a relief of

permanent injunction. The learned trail Court decreed the

suit of in favour of respondent Nos.1 and 2. Being

aggrieved and dissatisfied with the impugned judgment and

decree, present appeal is filed.

NEUTRAL CITATION

C/FA/2477/2023 ORDER DATED: 10/07/2025

undefined

5. Learned advocate for the appellants has

submitted that no suit shall lie to set aside a decree on

the ground that the compromise on which the decree is

based was not lawful. The judgment and decree is patently

illegal and therefore the same is required to be set aside.

5.1 Learned advocate for the appellants has further

submitted that the appellants have filed a separate suit

being Special Civil Suit No.65 of 2016, challenging the sale

deed executed in favour of respondent Nos.1 and 2, which

is pending for its adjudication.

5.2 In support of his contentions, learned advocate

for the appellants has relied upon the following decisions:

(i) Triloki Nath Singh Vs. Anirudh Singh(D) Thr.Lrs.

Reported in 2020(0)AIJEL-SC 66233;

(ii) Sakina Sultanali Sunesara (Momin) Vs. Shia Imami Ismaili Momin Jamat Samaj reported in 2019(0) AIJEL-HC 240951 and

NEUTRAL CITATION

C/FA/2477/2023 ORDER DATED: 10/07/2025

undefined

(iii) Prakash Robin Nayudu Vs. Rev. Imanuel S. Kant reported in 2023(0) AIJEL-HC 245857.

6. Per contra, learned senior counsel Mr.Manish

Bhatt for the respondents has very fairly conceded that the

decision referred to and relied upon by the learned

advocate for the appellants in the case of Prakash Robin

(supra) was assailed before the Hon'ble Apex Court and

the Hon'ble Apex Court has confirmed the view taken by

the Co-ordinate Bench of this Court. However learned

senior has counsel submitted that respondent Nos.1 and 2

intend to take appropriate recourse to challenge the

impugned consent decree dated 26.04.2016. It is contended

by learned senior advocate that though a separate suit

challenging the consent decree is not a permissible

remedy, in the present case, consent decree is vitiated by

fraud, as respondent Nos.1 and 2 are the owners of the

suit land by virtue of a registered sale deed dated

NEUTRAL CITATION

C/FA/2477/2023 ORDER DATED: 10/07/2025

undefined

08.03.2013, executed through their power of attorney

holder, Mr.Sanjay Patel. Respondent Nos.1 and 2 had also

filed Regular Civil Suit No.345 of 2013 seeking a

declaration and relief concerning the release of the sale

deed dated 08.03.2013. On 17.05.2016, learned trial Court

ordered the release of the said sale deed and the said suit

is pending.

6.1 Learned senior counsel Mr.Bhatt further

submitted that if the respondents herein avail the remedy

of challenging the consent decree by way of appropriate

proceedings, the time consumed in litigating Regular Civil

Suit No.283 of 2017 be excluded while computing the

period of limitation.

7. Be that as it may, in the present First Appeal,

the question which has been raised by learned advocate

NEUTRAL CITATION

C/FA/2477/2023 ORDER DATED: 10/07/2025

undefined

for the appellants is that a separate suit challenging a

consent decree drawn by the Civil Court cannot be

challenged by way of a separate suit. The view taken by

the Co-ordinate Bench of this Court in the case of Prakash

Robin (supra) has been upheld by the Hon'ble Apex Court

in the case of Sakina Sultanali Sunesara (Momin) Vs. Shia

Imami Ismaili Momin Jamat Samaj & Ors. Reported in 2025

SCC online SC 930. In para 15, the Hon'ble Apex Court

has observed as under:-

"15. We are satisfied that the Larger Bench took the right view. It noticed that the CPC, after the 1976 amendment, works in two distinct ways. If a person was already a party to the suit, and denies that any lawful compromise ever took place, the CPC requires that person to go back to the Trial Court under the proviso to Order XXIII Rule 3 and ask that Court to decide whether the compromise is valid. On the other hand, someone who was not a party to the suit, but whose rights are hurt by a consent decree, may approach the Appellate Court in a First Appeal under Section 96 of the CPC, but only after obtaining leave. Order XLIII Rule 1-A does not create an independent appeal at all; it merely says that, once an appeal is otherwise before the Court, the appellant may argue that the compromise should, or should not, have been

NEUTRAL CITATION

C/FA/2477/2023 ORDER DATED: 10/07/2025

undefined

recorded. Seen in that light, the High Court's directions correctly apply the structure of the statute and do not call for interference.

8. Considering the facts and provisions of law, it is

a settled proposition of law that a person, who is

aggrieved by a consent decree, cannot challenge the

consent decree by way of a separate suit. The remedy

available to the parties, who is aggrieved by consent

decree is challenged by way of an appeal after taking

leave of the Court. Since the issue is squarely covered by

the aforesaid decisions, present First Appeal deserves to be

allowed and the same is allowed. The judgment and

decree dated 06.05.2023 passed by learned 20 th Additional

Senior Civil Judge, Vadodara in Special Civil Suit No.283

of 2017, is hereby quashed and set aside.