Karnataka High Court

Mahesh S/O Murigeppa Avatagi At Avutagi vs Ishwar S/O Basappa At Basavaraj Avatagi ... on 4 March, 2024

     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                       BENCH                              R
      DATED THIS THE 04TH DAY OF MARCH, 2024

                        BEFORE

       THE HON'BLE MR. JUSTICE C.M. POONACHA

              C.R.P. No.100106 OF 2023

BETWEEN

1 . MAHESH
    S/O MURIGEPPA AVATAGI AT AVUTAGI
    OCC. AGRICULTURE AND BUSINESS
    R/O NO.1077, KOTAMBARI GALLI,
    BAILHONGAL 591102
    TQ. BAILHONGAL
    DIST. BELAGAVI
                                          ...PETITIONER
(BY SRI CHETAN MUNNOLI, ADVOCATE)

AND

1.    ISHWAR
      S/O BASAPPA AT BASAVARAJ
      AVATAGI AT AVUTAGI
      AGED ABOUT 28 YEARS
      OCC. AGRICULTURE,
      R-O KOTAMBARI GALLI,
      BAILHONGAL 591102
      TQ. BAILHONGAL,
      DIST. BELAGAVI

2.    CHANABASAPPA
      S/O ISHWARAPPA AVATAGI AT AVUTAGI
      OCC. AGRICULTURE,
      AGED ABOUT 67 YEARS
      R/O KOTAMBARI GALLI,
      BAILHONGAL 591102
                             2




     TQ. BAILHONGAL
     DIST. BELAGAVI

3.   BASAPPA
     S/O ISWARAPPA AVATAGI AT AVUTAGI
     AGED ABOUT 61 YEARS
     OCC. AGRICULTURE,
     R-O KOTAMBARI GALLI,
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

4.   CHANNAPPA
     S/O ISHWARAPPA AVATAGI AT AVUTAGI
     AGED ABOUT 58 YEARS
     OCC. AGRICULTURE,
     R-O KOTAMBARI GALLI,
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

5.   SMT. NAGARATNA
     W/O MAHANTAPPA GOKAVI
     AGED ABOUT 67 YEARS
     OCC. HOUSEHOLD WORK,
     R-O H.NO.31, PAGADI ONI,
     HUBBALLI, TQ. HUBBALLI,
     DIST. DHARWAD

6.   ULAVAPPA
     S/O MURIGEPPA AVATAGI AT AVUTAGI
     AGED ABOUT 50 YEARS
     OCC. AGRICULTURE,
     R-O KOTAMBARI GALLI,
     BAILHONGAL 591102.
     TQ. BAILHONGAL
     DIST. BELAGAVI

7.   SHANKAR
     S/O MURIGEPPA AVATAGI AT AVUTAGI
     AGED ABOUT 45 YEARS
                             3




     OCC. AGRICULTURE,
     R/O KOTAMBARI GALLI,
     BAILHONGAL 591102
     TQ. BAILHONGAL,
     DIST. BELAGAVI

8.   SMT. SHRIMATI
     W/O VEERANNA UPPIN
     AGED ABOUT 54 YEARS
     OCC. HOUSEHOLD WORK,
     R-O KOTAMBARI GALLI,
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

9.   SMT. SAVITA
     W/O BASAVARAJ KHANAGOUDRA
     AGED ABOUT 48 YEARS
     OCC. HOUSEHOLD WORK,
     R/O 7TH CROSS, BASAVA NAGAR,
     BAILHONGAL 591102
     TQ. BAILHONGAL,
     DIST. BELAGAVI

10 . DEEPAK
     S/O PARASHURAM DAYPULE
     AGED ABOUT 42 YEARS
     OCC. TAILORING
     R-O 7TH CROSS, BASAVA NAGAR,
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

11 . SHIVAYYA
     S/O GURUPADAYYA MATHAD
     AGED ABOUT 41 YEARS
     OCC. BUSINESS
     R/O KARLAKATTI 591111
     TQ. SAVADATTI
     DIST. BELAGAVI
                             4




12 . MALATESH
     S/O SHEKHARAPPA JAKKALI
     AGED ABOUT 39 YEARS
     OCC. SERVICE,
     R-O CHILAKWAD 582208
     TQ. NAVALGUND,
     DIST. DHARWAD

13 . SMT. SANGAVVA
     W/O MALATESH JAKKALI
     AGED ABOUT 38 YEARS
     OCC. SERVICE,
     R-O SERVICE,
     R-O CHILAKWAD
     TQ. NAVALGUND
     DIST. DHARWAD

14 . SURESH
     S/O CHANNAPPA HOOLI
     AGED ABOUT 46 YEARS
     OCC. BUSINESS,
     R-O MAHADEV SWAMY MATHAD ROAD
     BAILHONGAL 591102
     TQ. BAILHONGAL,
     DIST. BELAGAVI

15 . NAGESH
     S/O CHANNAPPA HOOLI
     AGED ABOUT 40 YEARS
     OCC. BUSINES,
     R-O BUSINESS,
     R-O MAHADEV SWAMY MATHAD ROAD
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

16 . SHASHIDHAR
     S/O MALLIKARJUNAPPA MORABAD
     AGED ABOUT 65 YEARS
     OCC. JOB,
     R-O NO.68, W RESIDENCY,
                             5




    M.M. TOWER,
    JAKKUR PLANTATION,
    YALAHANKA NORTH
    BENGALURU

17 . PRAKASH
     S/O ANNAPPA BIRADAR
     AGED ABOUT 47 YEARS
     OCC. GOVT. DOCTOR,
     R-O 7TH CROSS, BASAVA NAGAR
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

18 . BASAVARAJ
     S/O CHANNABASAPPA MURAGOD
     AGED ABOUT 53 YEARS
     OCC. JOB
     R-O 7TH CROSS,
     BASAVA NAGAR,
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

19 . MALLIKARJUN
     S/O GURUPADAPPA HOOLI
     AGED ABOUT 47 YEARS
     OCC. AGRICULTURE AND BUSINESS,
     R-O 7TH CROSS, BASAVA NAGAR,
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST.BELAGAVI

20 . SMT. SAROJINI
     W/O GANGAPPA KENGERI
     AGED ABOUT 50 YEARS
     OCC. HOUSEHOLD WORK,
     R-O MURGOD
     TQ. SAVADATTI
     DIST. BELAGAVI
                             6




21 . DUNDAPPA
     S/O RAMAPPA BELAGAVI
     AGED ABOUT 44 YEARS
     OCC. JOB,
     R-O BAGAWAN CHAL,
     BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

22 . YANKAPPA
     S/O SIDDAPPA MAJJIGENNAVAR
     AGED ABOUT 53 YEARS
     OCC. JOB
     R-O D. SALAPUR
     TQ. RAMADURGA
     DIST. BELAGAVI,
     NOW RAT. BAILHONGAL 591102
     TQ. BAILHONGAL
     DIST. BELAGAVI

23 . SMT. ROOPA
     W/O RAGHAVENDRA JADHAV
     AGED ABOUT 40 YEARS
     OCC. HOB,
     R-O. SHATAGAR CHAL,
     BAILHONGAL
     TQ. BAILHONGAL
     DIST. BELAGAVI

24 . IRAPPA
     S/O MALLAPPA HAVALAPPANAVAR
     AGED ABOUT 48 YEARS
     OCC. JOB
     R-O TORANAGATTI 591114
     TQ. RAMADURGA,
     DIST. BELAGAVI

25 . JAGADISH
     S/O BASAPPA VALI
     AGED ABOUT 50 YEARS
     OCC. JOB,
                             7




    R-O 7TH CROSS,
    BASAVA NAGAR,
    BAILHONGAL 591102
    TQ. BAILHONGAL
    DIST. BELAGAVI
                                         ...RESPONDENTS
(BY SRI S A SONDUR, ADVOCATE FOR R2 TO R8
(VAKALATH NOT FILED)
SRI L T MANTAGANI, ADVOCATE FOR R1
NOTICE TO R9 TO R25 IS DISPENSED WITH VIDE ORDER
DATED 3.08.2023)

      THIS CRP IS FILED UNDER SEC.115 OF CPC, PRAYING TO
CALL FOR RECORDS OF OS NO. 152/2021 ON THE FILE OF THE
SENIOR CIVIL JUDGE, BAILHONGAL AND        SET ASIDE THE
ORDER DATED 13.06.2023 ON IA NO. IV PASSED IN OS NO.
152/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE,
BAILHONGAL, IN THE INTEREST OF JUSTICE AND EQUITY AND
ETC.

     THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS    ON    04.01.2024 AND COMING   ON   FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                         ORDER

The present petition is filed under Section 115 of the

Code of Civil Procedure Code (hereinafter referred to as

'the CPC') challenging the order dated 13.6.2023 passed

on IA.No.4 in OS No.152/2021 by the Senior Civil Judge,

Bailhongal, (hereinafter referred to the 'the Trial Court')

whereunder IA.No.4 filed by defendant No.5 under Order

VII Rule 11 of the CPC has been dismissed by the Trial

Court.

2. The parties herein are referred to by their rank

before the Trial Court for the sake of convenience.

3. The relevant facts necessary for consideration

of the present petition are that the plaintiff instituted a suit

in OS No.152/2021 for partition and separate possession.

The defendant No.5 entered appearance in the said suit

and contested the case of the plaintiff. Defendant No.5

filed IA.No.4 under Order VII Rules 11(a) and (b) of the

CPC to reject the plaint as barred by law. The said

application is opposed by the plaintiff. The Trial Court by

its dated 13.6.2023 dismissed the said application. Being

aggrieved the present petition is filed.

4. Learned Counsel for the petitioner Sri Chetan

Munnoli, assailing the order of the Trial Court submits that

admittedly in the earlier suit OS No.101/2021 filed for

partition a compromise decree was entered in to between

the parties and the father of the plaintiff was allotted a

share in the said compromise. Hence, it is not open for

the plaintiff to file the present suit and he has to claim a

share only from the father. It is further contended that

the Trial Court erred in dismissing the application filed by

defendant No.5 without noticing the bar contained under

Order XXIII Rule 3A of the CPC. Hence, he seeks for

allowing of the present petition and granting of the reliefs

sought for.

5. Per contra, learned counsel for the first

respondent Sri Mantagani, justifies the order passed by the

Trial Court and submits that the contention put forth by

defendant No.5 and the application having been rejected,

the said order is not liable to be interfered with by this

Court in the present petition.

6. Both the learned counsel have relied on

various judgments, which shall be considered during the

course of this order.

7. The submissions of both the learned Counsel

have been considered and the material on record have

been perused. The question that arises for consideration

is, whether the order passed by the Trial Court is liable to

be interfered with?

8. The necessary facts are undisputed, inasmuch

as a suit in OS No.101/2021 was filed against the father of

the plaintiff and his brothers and sisters which suit was

decreed pursuant to a compromise entered into between

the parties in the Lok Adalath and the father of the plaintiff

was allotted a share in the said compromise. Admittedly,

the plaintiff was not arrayed as a party to the said suit.

9. The plaintiff has filed the present suit for a

declaration that he is not bound by the compromise passed

in OS No.101/2021 and also seeking for a share in the suit

properties. In the plaint, the plaintiff has averred that he

was not arrayed as a party to OS No.101/2021 and hence,

the said compromise is not binding upon him. It is further

averred that he has a right in the suit properties.

10. Order XXIII Rule 3A of the CPC states as

follows:

"3A. Bar to suit. - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."

11. The Hon'ble Supreme Court in the case of

Pushpa Devi Bhagath vs. Rajinder Singh1 after taking

note of the scheme of Order XXIII Rule 3 and Rule 3A of

the CPC, has held as follows:-

"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."

(2006) 5 SCC 566

12. In the case of Triloki Nath Singh v. Anirudh

Singh (dead) through legal representatives & Ors.,2

relied upon by the learned counsel for the petitioner the

Hon'ble Supreme Court was considering a case wherein the

appellant was the purchaser from a party to the lis during

the pendency of the proceedings before the first Appellate

Court. The original lis was compromised between the

parties when the same was pending before the second

Appellate Court. The appellant who was the purchaser,

subsequently filed a suit claiming that he was not bound

by the compromise. The Hon'ble Supreme Court noticing

that the appellant has purchased the property during the

pendency of the lis between the parties as also noticing

that he was claiming through one of the parties to the lis

held as follows:

"20. Thus, after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3- A of Order 23 CPC. As such, a right has been given under Rule 1-A(2) of Order 43 to a party, who denies the compromise and invites order of the

(2020) 6 SCC 629

court in that regard in terms of the proviso to Order 23 Rule 3 CPC while preferring an appeal against the decree. Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute."

(emphasis supplied)

13. Learned counsel for the petitioner further

relied on the judgments in the cases of State of Punjab

v. Jalour Singh3 and Bhargavi Constructions v.

Kothakapur Muthyam Reddy4 to contend that a party

challenging an award passed by a Lok Adalath is required

to challenge the same only by filing a writ petition.

However, the said judgment will not apply to the present

case inasmuch as the plaintiff was not a party to the

compromise and the said judgment is applicable only to

the parties to the compromise before the Lok Adalath.

14. It is further contended by the learned counsel

for the petitioner that in the law that is applicable to the

region where the parties are residing, a party is not

entitled to a partition without the assent of his father and

hence, the plaintiff can make a claim for partition only

through the father, and that the suit of the plaintiff is not

maintainable. In support of the said contention, he relied

on the extract from Mulla's Hindu Law - 24th Edition. He

also relies on the Division Bench judgment of Gujarath

High Court in the case of Aher Amir Duda v. Aher Amir

Arjan5 as well as the judgment of a coordinate Bench of

the Madhya Pradesh High Court in the case of Shiv Ratan

v. Kanhaiyalal6 .

15. The said contention of the learned counsel for

the petitioner is not liable to be accepted having regard to

the fact that the said contention was not urged/averred

when IA.No.4 was filed before the Trial Court. IA.No.4

under Order VII Rule 11(a) and (d) was filed only on the

ground that the earlier suit for partition was compromised

between the parties. Hence, the petitioner cannot be

permitted to raise a new ground before this Court for the

(2008) 2 SCC 660

(2018) 13 SCC 480

AIR 1978 GUJ 10

1993 MP.LJ 367

first time and he is entitled to urge the same as his

defence in the suit.

16. Learned counsel for the petitioner further relies

on a Division bench judgment of this Court in the case of

Bahubali Ramappa Padnad v. Babu @ Baburao

S.Padnad7 to contend that the suit of the plaintiff is not

maintainable. However, the judgment in the case of

Babhubali Ramappa Padnad7 is not applicable having

regard to the fact that a Division Bench of this Court in the

case of Siddalingeshwar & Ors., v. Virupaxgouda &

Ors.,8 has considered a question as to whether the bar

under Order XXIII Rule 3A of the CPC will apply if Rule 3B

is not complied with. In considering the said question, this

Court has held as follows:

"15. The effect of the amendments to provisions of Orders 23 and 41 of CPC, effected by Act No. 104/1976, can conveniently be summarised thus:

(i) If a party to a suit who enters into a compromise in terms of which a consent decree is made wants to challenge it, on the ground that it is not lawful, he need not be driven to file a separate

ILR 1999 KAR 3344

AIR 2003 KAR 407

suit to set aside such decree. In fact such a suit is barred by Rule 3A of Order 23. His remedy is to file an appeal under Order 43 Rule 1A of CPC contending that the compromise not being lawful, it should not have been recorded. Alternatively, he can file an application in the very suit in which the compromise is recorded to recall the consent decree on the ground that compromise is not lawful or is vitiated by fraud.

(ii) If a suit is a representative suit (as enumerated in the explanation to Rule 3B), no compromise or agreement can be entered without the leave of the Court, expressly recorded in the proceedings, after issue of notice to the persons interested, as provided in the said Rule. Any party to a representative suit, either suing or being sued in a representative character, should therefore seek leave of the Court to enter into such compromise/Agreement. The Court should give notice of such compromise/agreement to such persons as may appear to it to be interested in the suit before granting such leave. After such notice, and after satisfying itself that the proposed Compromise/Settlement is not disadvantageous to the persons interested, the Court may grant leave, by expressly recording it. Failure to comply with the mandatory provisions of Rule 3B will render the agreement or compromise void.

(iii) The object of the amendments to Order 23 and Order 43 is to have finality to proceedings and at the same time enable to party to a compromise, to challenge the decree passed in terms of such compromise, either by way of an appeal under Order 43 Rule 1A or by way of an application in the very suit, without resorting to a separate suit, if the compromise is not lawful. The said amendments are not intended to bar persons who were not parties to the suit (but nevertheless bound by the decree by virtue of the fact that the suit is a representative suit) from challenging such consent decree even where such decree was passed

without following the mandatory procedure prescribed under Rule 3B. A decree in a representative suit can bind non-parties, only if the procedural safeguards prescribed for representative suits are complied with. Similarly a consent decree in a Representative Suit will attract the bar under Order 23 Rule 3A only if the procedural safeguards prescribed under Order 3B are complied with and not otherwise."

(emphasis supplied)

15.1 This Court8 further held as follows:

17. .......... In a suit for partition, where the heads of branches alone are made parties, any decision rendered would bind not only the heads of the branches, but also the members of the branches represented by the respective heads (who have been made parties). Therefore, a partition suit where only the heads of branches are made parties, without impleading the other members who are entitled to shares, will be a representative suit for the purpose of Order XXIII Rule 3-B of CPC, having regard o the explanation (d) to the said Rule. In such a representative suit, no agreement or compromise can be entered into without the leave of the Court, expressly recorded in the proceedings after issuing notice to all parties interested in the suit. ..........."

(emphasis supplied)

17. It is relevant to note here that in the case of

Siddalingeshwar8, this Court also noticed the judgment

of the Division Bench of this Court in the case of

Babhubali Ramappa Padnad7 and held that the said

judgment is rendered per incuriam and is not a binding

precedent since it did not take note of Rule 3B of Order

XXIII.

18. It is clear that in the present case the plaintiff

not being a party to OS No.152/2021 and the compromise

in the said suit was not recorded after complying with Rule

3B of Order XXIII of the CPC is entitled to file the suit.