ARULMIGHU PACHAIVAZHI AMMAN TIRUKOIL Vs. ARULMIGHU VALLIAMMAN KOIL

JUDGEMENT

(1.) Arulmighu Pachaivazhi Amman Thirukoil, Mundiampakkam represented by its Nirvaki Umapathy has brought these two second appeals challenging the common judgment and decree dated 29.11.2006 passed in A.S.Nos.53 and 54 of 2005, wherein the learned Principal District Judge, Villupuram has dismissed the appeals, confirming the judgments and decrees dated 15.12.2003 passed in O.S.Nos.81 of 2011 and 178 of 1997 respectively by the learned Additional District Munsif, Villupuram, making it clear that the remedy open to the appellant herein is to move the lower Court itself and no appeal is maintainable, on the basis of the amended provisions of Order 23 Rule 3 of the Code of Civil Procedure against a consent decree under Section 96(3) of the Code, against the order of the Court recording the compromise or refusing to record a compromise in view of the deletion of clause (m) Rule 1 Order 43 of the Code. The first appellate Court also further held that 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 of Order 23 of the Code.

(2.) Mr.O.R.Abul Kalaam, learned counsel for the appellant, heavily criticising the approach adopted by both the Courts below in recording the compromise against the consent of the appellant/plaintiff, emphatically contended before this Court that when the appellant never made any application prior to passing of the compromise decree praying the trial Court to make note of the endorsement, the first respondent/first defendant and his men procured the endorsement and compelled the appellant to sign the papers, the trial Court also failed to make an enquiry as to whether the appellant signed the endorsement knowing fully well of its implication and consequences, on this basis, the trial Court ought not to have decreed the suit. Adding further, he has stated that the first appellate Court, after taking note of the grievance made by the appellant, ought to have remanded the matter to the trial Court with a direction to the trial Court to record the evidence of both sides and pass a decree on merits. As the first appellate Court has miserably overlooked this vital issue, the impugned judgments and decrees passed by both the Courts below, he pleaded, are required to be set aside. Adding further, he has stated that now in view of the impugned judgments and decrees passed by both the Courts below, the appellant is not even able to maintain any independent suit by virtue of Rule 3A of Order 23 of the Code of Civil Procedure, which clearly says that no suit shall lie to set aside the decree on the ground that the compromise on which the decree was passed was not lawful. In support of his submissions, he has also heavily relied upon the judgment of the Apex Court in the case of Banwari Lal v. Smt.Chando Devi and another, 1993 AIR(SC) 1139 for the proposition that a party, who is aggrieved by the compromise decree, can maintain an appeal by questioning the validity of the compromise, in view of Rule 1A of Order 43 of the Code. On this basis, restating the inability of the appellant in filing a fresh suit, in view of a specific bar under Rule 3A of Order 23 of the Code, sought for interference with the impugned judgments. He has also requested this Court to frame the substantial question of law as to whether it is open to the appellant to test the decree passed in the suit after recording the compromise, on the ground that the compromise should not have been recorded, since a fraud was played upon the appellant, despite the provision under Section 96(3) of the Civil Procedure Code.

(3.) In reply, Mr.A.K.Kumarasamy, learned counsel for the first respondent/first defendant, vehemently opposing the above request to admit the second appeals, urged this Court to dismiss the same on the ground that the second appeals which are directed against a consent decree are not legally maintainable under the amended provisions of Order 23, Rule 3 of the Code of Civil Procedure. Adding further, he has stated that when no appeal is maintainable against the consent decree under Section 96(3) of the Code, certainly no appeal is maintainable against an order recording the compromise or refusing to record a compromise in view of the deletion of clause (m) of Rule 1 of Order 43 of the Code. When the consent decree is operating as an estoppel and is valid and moreover 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 of Order 23 of the Code, the present second appeals, he pleaded, are not legally maintainable. Drawing the attention of this Court to the reasoning given by the first appellate court as mentioned in paragraph-19 of the impugned judgment, the learned counsel further stated that when the appellant filed the suits for permanent injunction against the first respondent on the ground that the first respondent has put up construction of a temple, during the pendency of the suits, however, when the suits were taken up for trial, both parties agreed not to put up any more construction and equally further agreed not to trespass into either of the temples. Since both the temples maintained by the appellant and the first respondent are situated in the poramboke land, the trial Court, after recording the written compromise signed by the parties and also the counsel on record for the parties, rightly recorded the compromise. As against that, the appellant preferred appeals. The first appellate Court also, by virtue of the provisions of Order 23, Rule 3 read with Section 96(3) of the Code, rightly pointed out that the approach adopted by the appellant was not legally sustainable, as the remedy if at all lies only before the trial Court. As the appellant brought the appeals, the first appellate Court, after considering the validity of the written consent given by both the parties and also keeping in view the agreement reached between them that they would not trespass into either of the temples and also would not alienate the property, finding no more infirmity in the consent decree passed by the trial Court, dismissed the appeals. As against that, no appeal shall lie, he pleaded.