JETHALAL C THAKKAR Vs. LALBHAI HIRALAL SHAH

JUDGEMENT

(1.) The learned Chief Justice directs me to dispose of the prayer for interim relief contained in prayer (c) of Misc. Application No. 568 of 1980 (in R.A.R. Suit No. 1247/4477 of 1978) ordered to be treated as a Notice of Motion by my learned brother Sawant.

(2.) The undisputed albeit vertiginous, sequence of events are as under :

(3.) At the outset, I shall deal with a preliminary contention urged by Mr. Chagla, the learned Counsel appearing on behalf of the respondent. Mr. Chagla invited me to vacate the orders passed by the Court of Small Causes on the ground that Misc. Application No. 568 of 1980 itself is not maintainable. Relyig on Fatmabai v. Sonabai, 13 Bom LR 573 ; Yasuf I. A. Lalji v. Abdullabhoy Lalji, 32 Bom LR 667 and Yusuf Ismailbhai Abdullabhai Lalji v. Abdullabhai Lalji 34 Bom LR 880, Mr. Chagla urged that the applicants remedy was to file a substantive suit for setting aside the consent decree, which they have done in the High Court as also in the Court of Small Causes. On the other hand, supporting the maintainability of Misc. Application No. 568 of 1980, Mr. Modi, the learned Counsel appearing on behalf of the applicants, urged that under the amended Rule 3-A of Order XXIII of the Code of Civil Procedure a substantive suit to set aside a consent decree was not called for and that the proper remedy was the one which the applicants had adopted, namely, filing miscellaneous application No. 568 of 1980, to set aside the consent decree, which was not lawful as it was obtained by fraud and/or misrepresentation practised by the respondent on the applicants.