[Cites 5, Cited by 0]
Telangana High Court
Sahebzadi Amina Marzia vs Zehra Aga Sayed on 15 April, 2026
Author: K.Lakshman
Bench: K. Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SRI JUSTICE B.R.MADHUSUDHAN RAO
CITY CVIL COURT APPEAL No.389 of 2018
DATE OF JUDGMENT: 15.04.2026
Between:
Sahebzadi Amna Marzia
Appellant.
AND
Zehra Aga Sayed and nine others
Respondents.
This Court made the following:
JUDGMENT (Per Hon'ble Sri Justice K.Lakshman)
Heard Mr.Srikanth Hari Haran, learned counsel
representing Mr.G.Ramakrishna, learned counsel for the
appellant and Mr.K.K.Waghray, learned counsel for respondent
Nos.1 and 2. Respondent Nos.3 to 10 are not necessary parties
and the said fact was mentioned in the cause title of the appeal
itself.
2. Appellant herein is the plaintiff in O.S.No.173 of 2002 on
the file of the learned Chief Judge, City Civil Court, Hyderabad.
She has filed the said suit seeking the following reliefs:
i) Canceling the alleged compromise judgment and decree
in O.S.No.1706 of 1994, dated 06.03.1995 passed by the
learned V Senior Civil Judge, City Civil Court at
Hyderabad;
ii) Declaration that the alleged irrevocable general power of
attorney and the alleged Deed of Assignment, both dated
27.12.1991 are not at all binding upon the plaintiff;
iii) Grant a consequential relief of injunction restraining the
Defendant Nos.4 and 5/"Defendants 4 to 10" herein from
disbursing any sum or sums whatsoever towards, the
alleged entitlement of Defendant Nos.1 and 2 from the
actual entitlement of the plaintiff to either the Defendant
Nos.1 and 2 or any other person or persons claiming
through them;
iv) Direct the defendant Nos.1 to 3 to pay to the plaintiff
the sum of Rs.1,13,59,931/- (Rupees one crore thirteen
lakhs fifty nine thousand nine hundred and thirty one only)
with interest thereon at the rate of 18% per annum from the
date of the present suit till realization; and
v) award costs of this suit.
3. During the pendency of the said suit, respondent Nos.1
and 2/defendant Nos.2 and 3 have filed an application under
Order VII Rule 11(d) read with Section 151 of the Code of Civil
Procedure, 1908 (for short, 'C.P.C.'), to reject the plaint in
O.S.No.173 of 2002, contending that when once the compromise
decree is passed by a Court, the suit questioning or challenging
the same is not maintainable as the same is barred under the
provisions of Order XXIII, Rule 3-A of C.P.C. In the said suit,
plaintiff sought to cancel the Deed of Assignment of 1995,
which was accepted and confirmed in the compromise decree
passed in O.S.No.1706 of 1994 and thus, the entire relief claimed
in the plaint is barred by law both under Order XXIII Rule 3-A
of C.P.C. and also under Law of Limitation.
4. Appellant herein filed counter opposing the said
application contending that limitation is mixed question of fact
and law and the said issue cannot be decided in an application
filed under Order VII Rule 11 (d) of C.P.C. On completion of
full-fledged trial, it is for the learned trial Court to consider the
said aspect. Father of respondent Nos.1 to 3 has filed a suit in
O.S.No.1706 of 1994 against the appellant and others for
partition and separate possession. The said suit ended in
compromise and decreed on 06.03.1995. Thereafter, the plaintiff
in the said suit has passed away. The plaintiff in O.S.No.1706 of
1994 is not a party to the present suit i.e., O.S.No.173 of 2002.
Therefore, plaintiff filed O.S.No.173 of 2002 seeking the
aforesaid reliefs. The ground on which defendant Nos.2 and 3
filed the aforesaid application can be considered only after full-
fledged trial but not in an application filed under Order VII Rule
11(d) of C.P.C. to reject the plaint.
5. Vide the impugned order dated 18.09.2017, learned trial
Court allowed the said application holding that there is no
challenge to the Decree and Judgment, dated 06.03.1995 in
O.S.No.1706 of 1994. It is a compromise decree with the consent
of the parties and that the irrevocable GPA and Deed of
Assignment, dated 27.12.1991 were also approved and
confirmed in the said decree and the appellant filed the suit in the
year 2002. Thus, it is barred by limitation and also barred by
Order XXIII Rule 3-A of C.P.C. Challenging the said order,
appellant preferred the present appeal.
6. As discussed supra, respondent Nos.1 and 2/defendant
Nos.2 and 3 filed the aforesaid application vide I.A.No.2715 of
2017 in O.S.No.173 of 2002 seeking rejection of plaint
contending that the suit in O.S.No.173 of 2002 is barred under
Order XXIII Rule 3-A of C.P.C. Therefore, it is relevant to note
Order XXIII Rule 3-A of C.P.C and the same is extracted
hereunder:
"3-A. 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."
7. It is apt to note that the expression "not lawful" used in
Order 23, Rule 3-A also covers a decree based on a fraudulent
compromise hence, a challenge to a compromise decree on the
ground that it was obtained by fraudulent means would also fall
under the provision of Order XXIII Rule 2 -A. The said
principle was also laid down by the Apex Court in Horil v.
Keshav1.
8. It is also apt to note that separate suit for setting aside of
compromise decree on the ground that it was unlawful, is not
maintainable. To challenge compromise decree on ground that
decree was not lawful i.e., it was void or voidable, party to
consent decree based on compromise has to approach same
court, which recorded compromise. The said principle was also
laid down by the Apex Court in R.Janakiammal v. S.K.
Kumarasamy2.
9. In M/s. Sree Surya Developers and Promoters v.
N.Sailesh Prasad and others3, the Apex Court considered the
scope and ambit under Order XXIII Rule 3-A of C.P.C. and also
under order VII Rule 11(d) of C.P.C. In paragraph No.11, the
Apex Court held that if it consider the relief of declaration of
title, recovery of possession, cancellation of revocation of Gift
Deed, declaration of DGPA and Deed of Assignment-cum-
(2012) 5 SCC 525
(2021) 9 SCC 114
AIR 2022 SC 1031
DGPA, the said reliefs can be granted only if the Compromise
Decree dated 13.01.2016 passed in O.S.No.1750 of 2015 is set
aside. Therefore, by asking such multiple reliefs, the plaintiff by
clever drafting wants to get his suit maintainable, which
otherwise would not be maintainable questioning the
Compromise Decree. All the aforesaid reliefs were subject
matter of earlier suits and thereafter also subject matter of
O.S.No.1750 of 2015 in which the Compromise Decree has been
passed.
10. As discussed supra, Mr.Agha Syed Alamdar Hussain, S/o
Syed Mohd. Shafi-Ul-Bagri, has filed the aforesaid suit in
O.S.No.1706 of 1994 against the appellant herein/plaintiff and
seven others seeking partition and separate possession. Mr.Agha
Syed Alamdar Hussain is the father of defendant Nos.1 to 3. He
has filed the aforesaid suit against the appellant herein/plaintiff
for partition and separate possession of the subject property in
the said suit. The said suit was ended in compromise and the
same was decreed on 06.03.1995.
11. It is not the case of the appellant herein/plaintiff that the
father of defendant Nos.1 to 3 had obtained the said decree by
playing fraud and it is a fraudulent decree. Even then, she has
filed the aforesaid suit in O.S.No.173 of 2002 seeking the
aforesaid reliefs for cancelation of the alleged compromise
decree in O.S.No.1706 of 1994, to declare the alleged
irrevocable general power of attorney and the alleged Deed of
Assignment both dated 2712.1991 are not at all binding on her
and also for perpetual injunction.
12. There is no challenge to the Decree and Judgment, dated
06.03.1995 in O.S.No.1706 of 1994 passed by the learned V
Senior Civil Judge, City Civil Court, Hyderabad.
13. Admittedly, the appellant herein has filed the suit in
O.S.No.173 of 2002 only on 18.07.2002 i.e., after lapse of
eighteen (18) years.
14. Learned counsel for the appellant contended that in a
plaint filed in O.S.No.173 of 2002, appellant/plaintiff has
specifically pleaded that she is an educated but 'Pardanashin'
lady, all these factors constitute undue influence. Plaintiff was
fraudulently made to believe as if she had lost her rights in the
entire estate of her late father and grandfather and that the
transaction under which the alleged Deed of Assignment came
into existence is such that in the event of the plaintiff having
failed to get any share from her father and grandfather's estates,
the plaintiff in such an eventuality would have had to return the
said amount of Rs.5,00,000/- which was lent to the plaintiff as
per the recitals of the alleged Deed of Assignment, dated
27.12.1991. Thus, according to the plaintiff, she is an educated
woman. She has filed the suit in O.S.No.173 of 2002 after lapse
of eighteen (18) years from the date of Decree and Judgment
dated 06.03.1995 in O.S.No.1706 of 1994.
15. As discussed supra, it is not the case of the appellant
herein that the father of defendant Nos.1 to 3 has obtained the
aforesaid Compromise Decree, dated 06.03.1995 in O.S.No.1706
of 1994 by playing fraud. There is no challenge to the said
Judgment and Decree. It is a consent decree. Appellant can't file
the aforesaid suit in O.S.No.173 of 2002 seeking the aforesaid
reliefs. Therefore, on consideration of the said aspects only, vide
the impugned order dated 18.09.2017 in I.A.No.2715 of 2017 in
O.S.No.173 of 2002, learned Chief Judge, City Civil Court,
Hyderabad, has allowed the said application filed by respondent
Nos.1 and 2/defendant Nos.2 and 3 under Order VII Rule 11(d)
of C.P.C. and rejected the plaint. It is a reasoned order and well
founded. There is no error in it. Appellant herein failed to make
out any case to interfere with the impugned order. Therefore, this
appeal is liable to be dismissed and accordingly, the same is
dismissed.
16. In the light of the aforesaid discussion, this appeal is liable
to be dismissed and accordingly, the same is dismissed.
Miscellaneous applications pending, if any, shall stand
closed. There shall be no order as to costs.
_________________
K. LAKSHMAN, J
___________________________
B.R.MADHUSUDHAN RAO, J
15th April, 2026.
YNK
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SRI JUSTICE B.R.MADHUSUDHAN RAO
CITY CVIL COURT APPEAL No.389 of 2018
15th April, 2026.
YNK
