B BALRAM CHANDRA Vs. ABDUL SATTAR

JUDGEMENT

(1.) HEARD Sri M.G.Misra, learned counsel for the applicant/appellant who has sought amendment, modification of the compromise decree passed in second appeal No.114 of 1951 dated 29.9.59. By this compromise decree an old litigation initiated in the year 1943 by filing a suit for possession of a plot in the city of Bahraich was set at rest after 16 years of litigation. Sri Rakesh Pratap Singh has put in appearance on behalf of all the respondents. It emerges from the record that a suit No.14 of 1943- B. Balram Chandra Vs. Nanhey was filed before Civil Judge, Bahraich seeking possession of a plot No.1041/3 measuring 0.700 acre situate in city of Bahraich. The decree passed by the trial court was challenged in the first appellate court, that is, in the court of District Judge, Bahraich being civil appeal No.234 of1947- B.Balram Chandra Vs. Nanhey Miya which was decided vide judgment and decree dated 6.12.1950. The appeal filed by the applicant/appellant B. Balram Chandra was dismissed and the judgment and decree passed by the District Judge in suit No.14 of 1950 was upheld. The applicant initiated third round of litigation in this Hon'ble Court by filing second civil appeal under section 100 C.P.C. assailing the judgment and decree dated 6.12.1950. The appeal had remained pending disposal in this Court for about 9 years. The contesting parties , that is, B.Balram Chandra and Abdul Sattar (Legal heir of Nanhey Miya, original respondent) submitted a joint application under O.23 R.3 C.P.C. seeking disposal of the appeal in terms of the compromise arrived at between the parties. A joint application/compromise application after getting signatures of parties duly identified by their respective counsel Barrister late V.K.Dhaon and Sri R.L.Shukla were presented before the Court. This compromise was also duly verified before the Deputy Registrar of this Court on 29.9.59.This Court had set at rest the controversy, settling the dispute between the parties vide following judgment and order rendered on 29.9.1959: "This matter in dispute has been compromised between the parties. The compromise has been duly verified. The appeal is decided in terms of the compromise which will form part of the decree. Parties will bear their own costs in this Court. The learned counsel have also stated before me that the parties agree not to ask for restitution or any realization of the costs of the courts below" Sd/- B.N.Nigam 29.9.1959 This second appeal in which the application has been filed seeking modification and amendment of the decree was finally decided in terms of the compromise which was also made part of the decree on 30.10.1959. As both the parties were satisfied with the compromise decree, they did not challenge the same in the Hon'ble Supreme Court of India and this judgment and decree dated 29.9.59 has become final, binding and operative on all the contesting parties. After about 27 years of passing of compromise decree, a misc. application No.1047 of 1986( recorded as C.M.Application No.1047 of 1986 under section 151and152 C.P.C.) was filed by Sri B.Balram Chandra, the plaintiff appellant in this Court seeking modification and amendment of the compromise decree passed on 29.9.59. The applicant has submitted in the application that he was not being given possession over .263 acre of defendant's plot No.1041/1 instead of plot No.1041/3, giving a different interpretation to clause (v) of the application dated 28.9.59 seeking a compromise decree. The respondents have filed objections to the application under sections 151and152 C.P.C. seeking amendment of the decree passed on 29.9.59. The application was resisted on the ground that a compromise decree cannot be modified unless the same was fraudulently procured. There is no mistake or error apparent on the face of record. Moreover such an application could not be filed after about 27 years of passing a compromise decree. The period of limitation has already expired. The application was not bona fide made. Learned counsel for the respondents have brought to the notice of the Court that after three unsuccessful attempts by the applicant/appellant, two execution cases, that 114 of 1951 and 3 of 1986 were filed by the applicant. The execution case No.114 of 1951 presented on 30.8.65( after about 7 years of passing of compromise decree) was dismissed by the learned Civil Judge, Bahraich on 19.2.1986. Civil revision preferred against the said order was also dismissed by the District Judge Bahraich. Learned counsel for the respondents have also drawn attention of the Court that second execution case registered as case No.3 of 1986 was still pending disposal in the court of District Judge, Bahraich. If the applicant has any grievance, he can pursue the execution case. Moreover the judgment and order dismissing the revision by the District Judge, Bahraich dated 19.2.1986 has become final and binding as no writ petition was preferred by the appellant against the said order before this Hon'ble Court. The application is not a bona fide application and the same is also barred by principles of estoppel. He has placed reliance on two judgments in the cases of Sir Sahabji Mahraj Mills Ltd, Butigarh(Amritsar) Vs. Chuni Lal AIR 1983 Punjab and Haryana 284 and J.C.Galstaun Vs. Pramatha Nath Roy and others AIR 1929 Calcutta 470. I have heard learned counsel for the parties at length and perused the materials on the record. The contesting parties have entered into a compromise . Both the contesting parties have submitted a joint application to this Court seeking disposal of the appeal in terms of the written compromise. Their signatures were duly identified by their respective senior counsel of this Court. It was duly verified under the orders of the Court before the Deputy Registrar of Hon'ble High Court. After formal verification etc., the matter was again brought before the Court . The appeal was finally decided in terms of the compromise which was made part of the decree. Judgement and decree became binding on the contesting parties. A perusal of the written compromise duly verified reveals that the terms and conditions were clear, properly spelt out and there was no ambiguity in the contents of the draft compromise. The parties had full knowledge of the written compromise filed on the record of second appeal No.114 of 1951 and the decision rendered by this Court on 29.9.59. It is admitted to both the parties that the applicant/appellant late B.Balram Chandra or his legal heirs Narendra Kumar Khare had neither preferred any application for leave to appeal before Hon'ble Supreme Court against the decree nor they had preferred any appeal against the judgment and decree passed by the High Court directly in the Apex Court. Moreover, the first execution application was dismissed by the executing court and the revisional court had affirmed the rejection order on 19.12.1986. The order of the District Judge, Bahraich had remained unchallenged till date. This Court has also taken note that second execution case registered as execution case No.3 of 1986 is still pending in the execution court at Bahraich. It is open for the applicant to pursue the said execution case. A perusal of the written compromise and the judgment and decree passed by this Court reveals that there was no error of fact or law in the decree. The applicant had failed to prove before this Court that the compromise decree was fraudulently procured. If a party desires to have a consent decree amended or vacated upon the ground that it was fraudulently procured , his proper course would be to proceed separately by filing a suit for the said purpose. A fresh action is necessary to set aside a consent decree upon the ground of fraud and such relief cannot be sought by filing an application seeing review of the order vide AIR 1929 Calcutta 470(DB) and AIR 1983 PandH 284(Supra). The applicant has also failed to justify as to what had prevented him from not approaching the executing court for about 7 years. It is interesting to note that after obtaining a compromise decree, he had approached this Court after more than 26-1/2 years seeking amendment, modification of the decree passed on 29.9.59 . Such exercise cannot be permitted under law. The relief sought by the applicant seeking amendment/modification of the decree under sections 151/152 C.P.C. is misconceived and relief prayed for cannot be granted. In view of the above discussion, the application is devoid of merit and the same is dismissed with costs.