Colonel Ali vs M/S Fusions Infraestate Pvt Ltd
2021 Latest Caselaw 7330 MP

                                1




         THE HIGH COURT OF MADHYA PRADESH
                     MCC No. 228/2020
                        Colonel Ali
                            vs.
          M/s Fusions Infraestate Pvt. Ltd. & others


Date of Order           12/11/2021

Bench Constituted       Single Bench

Order delivered by      Hon'ble Shri Justice Sanjay Dwivedi

Whether approved     for No
reporting

Name of counsel for the Shri Ashok Lalwani, counsel for the
parties                 applicant.
                        Shri Abhishek Gulati, counsel for the
                        respondent No. 1.


Reserved on: 17/08/2021
Delivered on: 12/11/2021

                              ORDER

This MCC has been filed by the applicant under Order 9

Rule 13 and Sections 151 and 152 of the Code of Civil

Procedure asking relief therein to set aside the order passed on

22.06.2018 in Review Petition No. 913/2018 and the decree

drawn in pursuance to the order dated 22.06.2018 be also set

aside.

2. The facts adumbrated in nutshell are that non-applicant

Nos. 1 and 2 entered into an agreement on 24.12.2013 to sell

the land belonging to Kh. No. 244, 240/2, 243/1 and 244/1

situated at Patwari Halka No. 11 of Village Jharkhera, Tehsil

and District Sehore, total area measuring 11.20 acres. The

non-applicant No. 3, on the basis of power of attorney of non-

applicant No. 2 (Smt. Jyoti Goyal) executed the sale deed for

sale of 3.25 acres of land on 15.07.2014 in favour of non-

applicant No.1.

3. A civil suit was filed by non-applicant No.1 for specific

performance of agreement entered into between the parties and

after filing the civil suit, on the basis of an application for

amendment, the nomenclature of the plaintiff was changed.

4. An application under Order 7 Rule 11 of CPC was filed by

the non-applicant No. 3 namely, Bilal Hussain for rejecting the

plaint and vide order dated 02.03.2016, the application was

allowed and thereafter first appeal under Section 96 of CPC

was filed against the judgment and decree dated 02.03.2016

passed in Civil Suit No. 21-A/2015. In the said appeal, on

31.10.2017 parties appeared before the High Court and asked

to pass a decree in terms of the agreement executed by the

parties before the mediator and also claimed that the impugned

judgment and decree be set aside and the matter be remitted to

the trial court for testing the same on merit. On 31.10.2017,

the High Court set aside the impugned judgment and decree

passed in Civil Suit No. 21-A/2015 in view of the compromise

took place between the parties before the mediator and the

matter was remitted back to the trial court for testing the same

on merit and in view of the provision of Section 16 of the Court

Fees Act the High Court directed the authority to refund the

court fees deposited by the appellant.

5. Thereafter, a review petition was preferred by non-

applicant No.1 M/s Fusions Infraestate Pvt. Ltd. pointing out

that the decree as per the order of the court has not been

drawn and the same be directed to be drawn in view of the

terms and conditions of Annexure A/1. The review petition i.e.

RP No. 913/2018 was disposed of vide order dated 22.06.2018

directing Registry to draw a decree in terms of agreement dated

06.07.2017. As per the agreed terms, as placed before the

mediator, a sale deed was to be executed in respect of 3.75

acres of land by non-applicant Nos. 2 and 3.

6. Thereafter, decree was drawn and the First Appeal

No.267/2016 was accordingly decided and a compromise

decree was passed by the High Court in pursuance to the

request made by the parties moving an application under

Section 89 of CPC filed in First Appeal No. 267/2016 asking

that the matter be referred to the mediator.

7. However, the non-applicant No. 3 filed review petitions i.e.

RP Nos. 621/2019 and 422/2019, which were entertained by

this Court and decided vide order dated 27.09.2019 dismissing

the same with cost of Rs. 50,000/-.

8. Against the order dated 27.09.2019 passed in the

aforesaid review petitions, SLP was filed before the Supreme

Court and the said SLP was also dismissed vide order dated

07.02.2020 wherein the Supreme Court condoned the delay

occurred in filing the SLP, but, dismissed the SLP observing as

under:-

"We do not see any reason to interfere in the matters. The special leave petitions are, accordingly, dismissed."

9. Thereafter, the decree drawn in pursuance to the order of

the High Court was put for execution in which the application

was moved by the present applicant under Order 1 Rule 10 of

CPC for deleting his name, but, the said application was

rejected by the Executing Court vide order dated 07.12.2019

against which a petition i.e. MP No. 268/2020 has been filed

which is pending and linked alongwith this MCC.

10. Learned counsel for the applicant has urged that the

present applicant was not the party in the civil suit as well as

in First Appeal No. 267/2016. The parties to civil suit were

referred to mutation and two agreements were executed, but,

only the agreement dated 06.07.2017 was produced in the

mediation proceeding. Even in review petition i.e. RP No.

913/2018, the present applicant was not the party, but the

request was made by the parties to draw the decree in terms of

the agreement dated 06.07.2017. He submits that even in the

said review petition, the present applicant was not noticed. He

submits that the decree was put for execution in which the

applicant was arrayed as judgment debtor. An objection was

raised by the present applicant by moving an application about

inclusion of his name as a judgment debtor, but the same was

rejected by the court vide order dated 22.10.2019.

11. Learned counsel for the applicant is assailing the orders

passed in Review Petition No. 913/2018 on the ground that the

orders are contrary to law as the High Court has not

appreciated the mandatory provision of Order 47 Rule 4(2) of

CPC appended with Proviso and also not followed the Proviso

(b) appended with sub-rule (2) of Rule 4 of Order 47 of CPC. He

submits that the decree has been drawn ex-parte, without

giving any notice to the present applicant.

12. In support of his submission, learned counsel for the

applicant has placed reliance upon the decisions reported in

(1992) 1 GLR 108 -State of Gujrat vs. Diwaliben Radhav

Khant and others, (2001) AIR (SC) 2497-M.K. Prasad vs. P.

Arumogam, (2016) AIRCC 54-Tamil Nadu Arasu

Kooturuvuthurai Paniyalargal Sangam and others vs.

M.R. Srinivasan and others, (1977) AIR (Calcutta) 3-

Kalipada Dinda and others vs. Kartick Chandra Hait and

others, AIR 1970 Kerala 57-Puthan Veettil Sankaran Nair

vs. Poomulli Manakkal Moopil Sthanam Parameswaran

Namboodiripad, (2003) 1 SCC 197-Lakshmi Ram Bhuyan

vs. Hari Prasad Bhuyan and others, AIR 1966 Orissa 225-

Sagua Barik vs. Bichinta Barik and another, (1993) 1 SCC

581-Banwari Lal vs. Chando Devi (Smt.) (Through L.Rs.)

and another, AIR 1992 Allahabad 360-Budha Lal vs. Sri

Ram Chand, (2005) 4 SCC 117-K.Venkatachala Bhat and

another vs. Krishna Nayak (D) By LRS. And others and AIR

1988 SC 400-Gurpreet Singh vs. Chatur Bhuj Goel.

13. In a nutshell, the basic objection of the applicant is that

the decree is not executable against him as he was not party to

the civil suit as well as in first appeal.

14. Shri Gulati appearing for the respondent No.1 has filed

reply taking stand therein that the present MCC is not

maintainable. It is stated by him that the present petition is

nothing but an abuse of process of law and deserves to be

dismissed with heavy cost. He submits that the present

applicant was very much aware of the proceedings initiated by

the High Court in First Appeal No. 267/2016, because when

the matter was referred to the mediator, the present applicant

was party to the said proceeding and gave his consent in the

terms and conditions of the agreement, which is the foundation

of the decree passed by the High Court as the said decree was

drawn in view of the terms and conditions of the agreement

dated 06.07.2017. Learned counsel for the respondent has

drawn attention of this Court that the said agreement has been

signed by the present applicant and his photograph is also

affixed on the same. He further submits that non-applicant

No.3 has already assailed the decree drawn by the High Court

in pursuance to the compromise took place between the parties

before the mediator by filing review petition i.e. RP No.

621/2019, but the same was dismissed by this Court vide

order dated 27.09.2019 with a cost of Rs.50,000/- and the said

order was further assailed before the Supreme Court by filing

SLP but it was also dismissed vide order dated 07.02.2020. He

submits that from the order passed by the Supreme Court, it is

clear that the decree drawn by the High Court in pursuance to

the order passed on 22.06.2018 in Review Petition No.

913/2018 has been tested properly by this Court and rejected

the objection of the non-applicant No. 3 and further tested by

the Supreme Court dismissing the SLP observing that they do

not find any reason to interfere in the order passed by the High

Court. As such, present MCC filed by the applicant before this

Court again seeking recall of the order dated 22.06.2018

passed in Review Petition No. 913/2018 is not maintainable,

because that said order has already been merged in the order

passed by the Supreme Court passed in SLP. The applicant at

the most can approach the Supreme Court seeking review of

the order or whatever relief he wants to claim because as per

the plea of merger, the order of High Court has been merged in

the order of Supreme Court, but, merely because that has been

assailed by the counter part of the present applicant, the said

issue cannot be reopened and cannot be decided by this Court

afresh.

15. Shri Gulati, in support of his submission has placed

reliance upon the judgments reported in 2018(3) MPLJ-

Principal, Maharshi Vidya Mandir, Sagar vs. Labour

Court, Sagar and another, (2008) 2 SCC 326-Sunil Poddar

and others vs. Union Bank of India, (2015) 7 SCC 601-

Rajasthan Housing Board vs. New Pink City Nirman

Sahkari Samiti Limited and another, (1084) 3 SCC 46-

Ghanshyam Dass and others vs. Dominion of India and

others and (2019) 20 SCC 277-Kaushaliya vs. Jodha Ram

and others.

16. I have heard the arguments advanced by the learned

counsel for both the parties, perused the record and gone

through the cases cited by both the parties in support of their

arguments.

17. As per the submission made by counsel for the applicant,

his main grievance is that the decree drawn by the High Court

is not valid one because before drawing the decree the present

applicant has not been given any notice. Even the order passed

by the High Court in Review Petition No. 913/2018 that too

without giving any opportunity of hearing to the present

applicant is also illegal and liable to be set aside as the same

has been passed in violation of the principle of natural justice.

According to him, the impugned order has been passed without

any notice to the applicant and as such the said order is in

violation of the provisions of Order 47 Rule 4(2) of CPC and

Proviso appended thereto, which clearly provides that no order

can be reviewed without issuing notice to the parties

concerned. It is also contended by the counsel for the applicant

that the decree drawn is not executable against the present

applicant for the reason that he was neither party in the first

appeal nor in the Review Petition No. 913/2018. Counsel for

the applicant has submitted that the order passed in review

petition and thereafter decree drawn, in which applicant was

not given any notice, is itself illegal and, therefore, both the

orders may be recalled.

18. However, I am not convinced with the submission made

by the learned counsel for the applicant because in Review

Petition No. 913/2018 the court has not passed any order

causing prejudice to the parties as in the pending first appeal

parties submitted that there was possibility of settlement

between them and on their own request the matter was

forwarded to Mediator where an agreement was executed on

certain terms and conditions, which was approved by the

parties putting their signatures on the said agreement and the

present applicant was very much present before the Mediator

and also accepted the terms and conditions of the agreement

executed. In the review petition, request was made before the

Court that decree be drawn in pursuance to the terms and

conditions of the agreement executed before the Mediator. The

present applicant at the time of execution of agreement

accepted those terms and conditions of the agreement knowing

fully well that he would abide by the same and finally the said

agreement would be executed and he would have to perform

his part as per the terms of the agreement. Thus, no prejudice

was caused to the present applicant if decree was drawn in

view of the terms and conditions, as have been laid down in the

agreement executed before the Mediator with the consent of the

parties in which the present applicant was also one of the party

and accepted the terms and conditions of the agreement. The

applicant was not noticed because he was not a party to the

civil suit which gave rise to the appeal and in appeal the matter

got settled in terms of agreement executed before the Mediator.

Under such facts and circumstances of the case, the present

applicant was not required to be heard and no notice was

required to be given to him by the High Court at the time of

passing the order in Review Petition No. 913/2018. It is not a

case in which the applicant has come with a stand that his

signature on the agreement was obtained by fraud before the

Mediator. He accepted the terms of the agreement before the

Mediator in the presence of counsel of both the parties.

19. It is apt to mention here that the decree passed by the

High Court was assailed by the respondent No.3 herein

namely, Bilal Hussain by filing Review Petition Nos. 621/2019

and 422/2019. The decree passed by the High Court was

assailed on various grounds and finally the said review

petitions were dismissed vide a common order dated

27.09.2019 with a cost of Rs.50,000/-, as this Court found

that the review petitions filed by the respondent No. 3 were

frivolous. The order of this Court was further assailed by the

respondent No. 3 by filing Special Leave petitions before the

Supreme Court, but, the same were also dismissed vide order

dated 07.02.2020. Thereafter, the said decree was put for

execution in which the present applicant had to perform his

part on the basis of which the decree was passed, that too on

an undertaking or the terms accepted not only by respondent

No. 3 but also by the present applicant. Although the present

applicant was not a party in the civil suit, but, in view of the

subsequent development took place during pendency of civil

suit and appeal preferred before the High Court, the parties

arrived at a settlement and that settlement reduced in writing

by way of agreement executed before the Mediator in which the

present applicant also accepted the terms and conditions of the

said agreement knowing fully well that the compromise decree

in pending appeal would be passed on the basis of terms and

conditions of the agreement. When final decree was passed in

execution proceedings, the present applicant was also made

party because he too had to perform his part of the decree.

Nothing illegal was committed by the decree holder by

impleading present applicant as a party before the Executing

Court otherwise without his presence decree could not have

been executed for the reason that some part of the decree had

to be performed by the present applicant. When the respondent

No. 3 challenged the execution of decree and to keep the matter

pending filed a review petition before this Court for recalling

the order passed by the High Court so as to recall the decree

executed in pursuance to the direction of the High Court, the

said attempt failed, the counter part of the respondent No. 3

i.e. present applicant, whose interest is also the same as that of

respondent No.3, came before this Court reiterating the same

prayer, which was already rejected by this Court in an attempt

made by the respondent No. 3.

20. Considering the earlier order passed by this Court in

review petitions preferred by the respondent No. 3 and the fact

that the order has been affirmed by the Supreme Court, in my

opinion, the present petition is frivolous one, as the interest of

respondent No. 3 and the present applicant are not conflicting

with each other because for both the parties the same counsel

are protecting the interest and as such the order passed by the

High Court in Review Petition No. 913/2018 is not required to

be recalled. It is pertinent to mention here that when the

respondent No. 3 challenged the order, this Court observed

that the conduct of the applicant is very shocking as he

entered into an agreement with open eyes before the Mediator,

accepted the terms and conditions knowing fully well that the

same will be converted into a decree, but when the decree was

passed and put for execution, he sought recall of the order. In

the present case also the present applicant is also doing the

same thing, but, this Court is not inclined to entertain the

request of the present applicant because he was also a party to

the agreement and now he is avoiding to discharge his part of

the decree. The court below has rightly rejected the application

of the applicant for deleting his name from the array of the

party on the ground that he was not party to the civil suit as

well as first appeal before the High Court, which was ultimately

decided in terms of the compromise decree.

21. Learned counsel for the applicant has relied upon several

decisions involving the issue regarding maintainability of

second review petition, but this Court is not entering into the

said field and not rejecting the present petition on the said

count. Therefore, cases cited by the learned counsel for the

applicant in that respect have no application in the present

facts and circumstances of the case. Applicant has also relied

upon several decisions challenging the validity of the decree

passed by the High Court in terms of the agreement executed

before the Mediator, but those case laws are not applicable in

the present case and even to some extent they go against the

present applicant.

22. In the case of Banwari Lal (supra) the Supreme Court

has observed that if a compromise took place on the basis of

contract, which is fraudulent, the said compromise decree

cannot be considered to be a valid one, but, here in this case it

is not the stand of the applicant that the agreement executed

before the Mediator was not lawful and it got executed

fraudulently and, therefore, the decree passed in pursuance to

the said agreement cannot be considered to be valid one. Per

contra, the Supreme Court has observed that if a compromise

took place before the parties and signed by them without any

fear and pressure, the said compromise cannot be said to be

unlawful.

23. Likewise, in the case of Lakshmi Ram Bhuyan (supra)

also the Supreme Court has observed that decree should

ordinarily be drawn up by the court passing it, however, if High

Court Rules so provide, the ministerial act of drawing up the

decree may be passed on to the trial court. Here in this case,

the High Court has directed the Registry of this Court to draw

the decree in view of the terms of the conditions of the

agreement executed before the Mediator and accordingly the

decree was drawn. It is not the case of the parties that the

decree was drawn contrary to the terms and conditions of the

agreement. Admittedly the agreement was executed in the

presence of the parties and they put their signatures in the

agreement accepting the terms and conditions made

thereunder. Therefore, the cases relied upon by the applicant

are not providing any help to him.

24. The Supreme Court in the case of K.Venkatachala Bhat

(supra) has observed that if compromise is not signed by the

parties, cannot be recorded by the Court, compromise should

be signed either by the parties or their counsel or even their

agents. Here in this case, parties have signed the agreement in

the presence of their counsel and decree has been drawn in

view of the said agreement. Therefore, the decree drawn in view

of the compromise cannot be said to be illegal and that decree

is enforceable under the law.

25. On the contrary, the cases on which the learned counsel

for the respondent has placed reliance support the submission

made by him. In the case of Kaushaliya (supra) the decree

was passed in pursuance to the settlement took place before

the Mediation in respect of immovable property. The objection

to execution of the decree by the parties to the agreement was

found illegal and not maintainable by the Supreme Court. The

Supreme Court has also observed that if decree has been

drawn in pursuance to the settlement of the parties took place

before the Mediator even to the extent that the property which

was not subject matter of the dispute, that settlement is

binding on the parties and required to be acted upon. The

Supreme Court in paragraph 17, 18 and 19 has observed as

under :

"17. In the mediation, parties may try for amicable settlement, which is reduced into writing and/or a settlement agreement and thereafter it becomes the part of the Court's order and the Court disposes of the matter in terms of the settlement agreement. Thereafter the order in terms of the settlement agreement is executable irrespective of the fact whether the settlement agreement is with respect to the properties which was/were not the subject- matter of the proceedings before the Court. Thereafter the order passed by the Court in terms of the settlement is binding to the parties and is required to be acted upon and/or complied with and as observed above the same is executable.

18. Under the circumstances, the submission on behalf of Ramu Ram and Rampal that as the properties in question were not the subject-matter of the suit before the trial, the same could have been the subject-matter of the settlement agreement and/or the order dated 05.05.2017 cannot be accepted. The order passed by this Court dated 05.05.2017 in Kaushaliya v. Jodha Ram is required to be complied with and the same is executable. Under the circumstances the executing court has to execute the order passed by this Court dated 05.05.2017 in Kaushaliya v. Jodha Ram in its true spirit.

19. In view of the reasons stated above, M.A. No.2485 of 2018 stands dismissed. I.A. No.30045 of 2019 is hereby allowed. In exercise of powers conferred under Article 142 of the Constitution of India and to see that the order passed by this Court dated 05.05.2017 in Kaushaliya v. Jodha Ram is fully complied with, we direct all the concerned persons claiming to be in possession of the disputed properties in questions including Plot Nos. 29 and 29-A of the Jodha House to handover the peaceful and vacant possession to Jodha Ram as per the order passed by this Court on 05.05.2017 in Kaushaliya v. Jodha Ram, within a period of four weeks from today. The executing court is hereby directed to see that the present order passed by this Court and its earlier order dated 05.05.2017 in Kaushaliya v. Jodha Ram is fully complied with. Both the parties Kaushaliya and Jodha Ram parties to the settlement agreement dated 10.02.2017 are hereby directed to comply with the terms and conditions of the settlement agreement dated 10.02.2017 and the order passed by this Court on 05.05.2017 in Kaushaliya v. Jodha Ram fully and in its true spirit. Consequently, the Contempt Petition stands disposed of at this stage."

In Ghanshyam Dass and others (supra), the Supreme

Court has observed as under:-

"17. Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. In Sangram Singh v. Election Tribunal, Kotah, Vivian Bose, J. in his illuminating language dealing with the Code of Civil Procedure said:

It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves

no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

18. Our laws of procedure are based on the principle that "as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities". Here, all the requirements of Section 80 of the Code were fulfilled. Before the suit was brought, the Dominion of India received a notice of claim from Seth Lachman Dass. The whole object of serving a notice under Section 80 is to give the Government sufficient warning of the case which is going to be instituted against it (sic so) that the Government, if it so wished (sic can), settle the claim without litigation or afford restitution without recourse to a court of law. That requirement of Section 80 was clearly fulfilled in the facts and circumstances of the present case.

19. It is a matter of common experience that in a large majority of cases the Government or the public officer concerned make no use of the opportunity afforded by the section In most cases the notice given under Section 80 remains unanswered till the expiration of two months provided by the section. It is also clear that in a large number of cases, as here, the Government or the public officer utilised the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section. It is unfortunate that the defendants came forward with a technical plea that the suit was not maintainable at the instance of the plaintiffs, the legal heirs of Seth Lachman Dass on the ground that no fresh notice had been given by them. This was obviously a technical plea calculated to defeat the just claim. Unfortunately, the technical plea so raised prevailed with the High Court with the result that the plaintiffs have been deprived of their legitimate dues for the last 35 years."

Further in the case of Sunil Poddar and others (supra)

the Supreme Court has observed as to when notice to the

parties is required. In the said case, the Supreme Court has

observed the necessity of notice to the parties and its effect.

Here in this case no notice was required to be issued to the

present applicant because before Mediator when he signed the

agreement, he was fully aware of the fact that the said

agreement would be reduced in decree and the same would be

executable against him as the terms and conditions of the

agreement were binding upon him and he had to perform his

part in pursuance to the said decree.

26. The respondent has also placed reliance upon a full

Bench decision of this High Court rendered in the case of

Principal, Maharshi Vidya Mandir (supra) in which the

Court has observed that no notice is required to a party when

he is fully aware of the fact that in his presence before the

Mediator the agreement of settlement would be executed and

on the basis of the said agreement decree has to be drawn. The

present applicant was fully aware of the fact that the

proceeding before the Mediator was being taken place in

pursuance to the pending appeal before the High Court and,

therefore, no further notice to the applicant was required to be

given by the High Court.

27. In view of the submission made by the learned counsel for

the parties and the discussion made hereinabove, it is as clear

as day light that the applicant is avoiding the execution of

decree, which was passed in pursuance to the agreement took

place between the parties. In the first round of litigation, the

respondent No. 3 came before this Court challenging the

validity of decree on various grounds and almost on the same

grounds, the present applicant has also come before this Court

by filing the present MCC. Parties have also been represented

by the same counsel showing that they have no conflict of

interest. Under such a circumstance, I do not find any

substance in the submission made by the learned counsel for

the applicant that the order passed in Review Petition No.

913/2018 on 22.06.2018 and the decree passed by the High

Court in pursuance to the agreement executed before the

Mediator are illegal and liable to be recalled is hereby rejected.

28. The petition being without substance is hereby

dismissed.

(Sanjay Dwivedi) Judge

Raghvendra

RAGHVE Digitally signed by RAGHVENDRA SHARAN SHUKLA DN: c=IN, o=HIGH COURT OF

NDRA MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002, st=Madhya Pradesh,

SHARAN 2.5.4.20=0b4ca33e82678112c8b8 779ae1f77dd53c66b97e56d85ed6 193d6ff614e6a268, cn=RAGHVENDRA SHARAN

SHUKLA SHUKLA Date: 2021.11.16 14:34:17 +05'30'