Mukesh Dubey vs Smt. Asha Bhargava
2023 Latest Caselaw 320 MP

IN T HE HI GH C OU RT OF M AD HYA P RA D E SH
               AT J A B A L P U R
                    BEFORE
       HON'BLE SHRI JUSTICE SHEEL NAGU
                       &
      HON'BLE SHRI JUSTICE VIRENDER SINGH

             ON THE 5th OF JANUARY, 2023

            MISC. CIVIL CASE No. 1298 of 2013
BETWEEN:-
MUKESH DUBEY S/O LATE NARMADA PRASAD DUBEY,
AGED ABOUT 50 YEARS, 81/1 MADAN MAHAL,
GUPTESHWAR, JABALPUR
                                  .....PETITIONER
(BY SHRI SHARAD GUPTA - ADVOCATE)

AND
1.  SMT. ASHA BHARGAVA W/O DR. MAHESH KUMAR
BHARGAVA ITI BUILDING BODABAGH, REWA (MADHYA
PRADESH)
2. MANISH KUMAR BHARGAVA S/O DR. MAHESH
KUMAR BHARGAVA, R/O ITI BUILDING, BODABAGH,
REWA (MADHYA PRADESH)
3.  DR. MAHESH KUMAR BHARGAVA S/O LATE SHYAM
SUNDER GHARGAVA ITI BUILDING, BODABAGH, REWA
(MADHYA PRADESH)
4.   M/S KHANNA PROPERTIES & INFRASTRUCTURE
PVT. LTD THROUGH ITS DIRECTOR SHRI AMANDEEP
SINGH KHANNA, 18, NEW BAZAR, JABALPUR (MADHYA
PRADESH)
                                       .....RESPONDENTS

(BY SHRI GIRISH KUMAR SHRIVASTAVA - ADVOCATE FOR
RESPONDENT NO.1)
...................................................................................................................
      This petition coming for orders this day, JUSTICE VIRENDER
                      SINGH passed the following:

                                ORDER

By filing this Miscellaneous Civil Case, the petitioner seeks following reliefs:-

"A. It is, therefore, most humbly prayed that this Hon'ble Court may kindly be pleased to recall the order dated 09.05.2013 passed in First Appeal Nos.422/2010 and 447/2010 setting aside the mediation proceedings and may please to cancel the agreement dated 16.06.2012. B. Further this Hon'ble Court may kindly be pleased to direct the non-applicant No.4 to pay damages to the applicant which occurs from the negligent behavior of non- applicant No.4.

C. Any other reliefs, may also kindly be awarded looking to the facts and circumstances of the case."

2. Facts relevant to decide the present petition are that both the parties challenged the judgment and decree dated 23.04.2010 passed by IInd Additional District Judge, Jabalpur in Civil Suit No.126- A/04 by preferring separate First Appeal No.422/2010 and First Appeal No.447/2010.

3. During pendency of these appeals, the parties arrived at a settlement through mediation. The settlement was placed on record and was allowed. In terms of the settlement, order dated 09.05.2013 was passed and both the appeals were disposed of. A decree was directed to be drawn up accordingly. Now, the petitioner wants to recall that order and decree and to set aside the settlement arrived at between the parties, complaining that the other side did not discharge their duties cast in the settlement and therefore, the agreement/compromise arrived at between the parties could not be executed.

4. Since the decree passed on account of settlement arrived at between the parties is an executable decree and in case of allegation of non-compliance of any term or condition by any party, it can be executed by initiating appropriate proceeding before the appropriate Court in accordance with law and when there is no allegation that any fraud has been played on the Court, a decree passed on account of settlement arrived at between the parties cannot be recalled or quashed. Here, we can usefully quote para 18 of the judgment of the Andhra Pradesh High Court rendered in Anita vs. R. Rambilas. reported in AIR 2003 AP 32, wherein after discussing the law on the subject, concluded in clear words that:

"18. By reading the judgments of the Apex Court, we have no hesitation in holding that the review/recall petition would not lie. If the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy left over to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud. But if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151 C.P.C."

5. The scope of review or recalling is very limited. Since there is no allegation of fraud played on the Court or more precisely there is no allegation of fraud and further there is no error apparent on the face of the record, the relief claimed by the petitioner in this petition cannot be granted.

6. Consequently, the petition is dismissed.

                       (SHEEL NAGU)                                (VIRENDER SINGH)
                          JUDGE                                         JUDGE
rj
 Digitally signed by RAJESH
 KUMAR JYOTISHI
 Date: 2023.01.07 13:28:57
 +05'30'