THAKUR PRASAD Vs. BHAGWANDAS

JUDGEMENT

(1.) This opinion shall also govern Civil Revision No. 1784 of 1983 between the same parties. Both these revisions arise out of the same suit. The following question has been referred by the learned Single Judge for opinion of this Bench :

(2.) The parties are real brothers. Their father Dhannalal died in the year 1964 leaving behind his widow Smt. Reotibai and five sons, including the applicant and non-applicant. By agreement dated 29-1-1980, the legal representatives of Dhannalal, referred the dispute regarding the property left by the deceased to Panchas. However, due to certain opposition the Panchas could not give their award and closed the proceeding. The non-applicant then filed civil suit for possession of house No. 147. Girja Kund Ward, Seoni claiming it to be his exclusive property and it was alleged that as the applicant came on transfer, the non-applicant permitted him to stay in the house but thereafter he has not vacated the same. The applicant, on the other hand, contended that the suit house is joint family property and was purchased out of joint family funds but the sale deed was taken in the name of the non-applicant. However, on 16-3-1982, parties filed a compromise application in the suit and the case was fixed for 19-3-1982. On that day the applicant opposed the compromise application saying that his signature has been taken under coercion and it was not legal because it embraces property other than the suit property and also involved persons not party to the suit. After recording some evidence, the trial court came to the conclusion that the compromise was voluntarily executed and passed a decree in terms thereof on 7-4-1982. The applicant filed Misc. Civil Appeal No. 10 of 1982 in the court of District Judge under Order 43. R.1-A of the Code of Civil Procedure, which was registered as Misc. Appeal. The appeal was dismissed on merits on 9-10-1982. The applicant has also preferred Civil Revision No. 965 of 1982 in this court against the order of the trial court dated 7-4-1982. This court by order dated 4-4-1983 in Civil Revision No. 965 of 1982 set aside the compromise recorded by the trial court observing that the compromise was invalid as it embraces bulk of the properties which were not the subject matter of the suit and also it includes certain other persons who were not parties to the suit and that being so, even if the compromise is held to be with free-consent of the applicant, it will not be possible to uphold the decree. Therefore, the case was remanded to the trial court with a direction that it would be open to the non-applicant to urge that clause 2(k) relates only to the suit property and is between the parties to the suit and at least a decree with respect to that part of the compromise should be passed and it would be open to the applicant to show that this clause 2(k) is inseparable from other clauses and it is an integral part of the agreement. Thereupon the impugned order has been passed by the trial court on 10-10-1983 holding that clause 2(k) is not inseparable from the compromise and it can stand by itself and as such a decree in respect of eviction of the applicant from the suit property has been passed. Against this order Civil Revision No. 1784 of 1983 has been preferred. The applicant also preferred an appeal under Order 43, Rule 1-A before the District Judge, who by order dated 28-10-1983 directed that as a regular appeal lies under S.96 of the Code against the judgment and decree of the trial court proper court-fee must be paid. Since no proper court-fees were paid, the appeal was dismissed as not tenable by the District Judge on 16-11-1983. Against this order Civil Revision No. 1910 of 1983 has been preferred.

(3.) For a proper appreciation of the question referred, it would be necessary to mention here what was the law applicable to compromise decrees under the Code before its amendment by Amending Act No. 104 of 1976. Order 23, Rule 3 provided that where it is proved that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the court shall pass a decree in accordance therewith so far as it relates to the suit. Order 43, Rule 1(m) provided that an appeal shall lie from an order under O.23, Rule 3, recording or refusing to record a compromise. Under S.96(3) no appeal lay from a decree passed by the Court with the consent of the parties. The Privy Council in Zahirul Said v. Lashmi Narayan, AIR 1932 P. C. 251 has held that the proper method for questioning a consent decree is either by review or by regular suit and not by way of appeal. The Supreme Court in K. C. Dora v. G. Annamanaidu, AIR 1974 SC 1069 has held that Order 23, Rule 3 not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful, the decree to the extent it was a consent decree, was not appealable because of the express bar in section 96(3). Therefore, it appears that the law as it stood before the amendment in 1976 was that a consent decree can be set aside in a Miscellaneous Appeal and not by way of regular appeal under O.43, R.1(m) and also by way of a civil suit. Further there was unanimity in the decisions of the High Courts that a consent decree which is not lawful, i.e. void, can be set aside and an appeal was competent in spite of S.96(3). However, the minority view was that even if the factum of compromise is in dispute still an appeal will be barred in view of S.96(3). The Madras, Lahore, Patna, Calcutta and Travancore and Cochin High Courts have taken the view that even if the compromise is resiled by one of the parties, still no appeal will be competent in view of S.96(3). Govindaswami v. Kaliaperumal, AIR 1921 Mad 696 Gurchaman Singh v. Shibdev Singh, AIR 1922 Lahore 309, Sabitri Thakurain v. Mrs. F. A. Savi, AIR 1933 Pat 306, Mahammad Mia v. Osman Ali, AIR 1935 Cal 239 and B. Meerakutty v. K. Meerakutty, AIR 1952 Trav Co. 91. However, this court in Renuka v. Onkar, AIR 1918 Nag 129 has held that the right of appeal generally given against all decrees by S.96, sub-secs.(1) and (2) Civil P. C., is only withheld by sub-section (3) in the case of decree passed with the consent of parties. Sub-sec.(3) is limited to cases where the parties invite the court to pass a particular decree and the court acts accordingly. A decree based on a finding-arrived at by the Court against the consent of one party, to the effect that the matter in dispute has been compromised, is not a decree passed with the consent of parties and S.96(3) has therefore no application to it. The same view has been taken in Mt. Ummakulsum v. Ghulam Rasul, AIR 1929 Sind 32 that S.96(3) does not bar a right of appeal by a person who denies that he was a party to the alleged compromise. Majority of the decisions were to the effect that when challenge to the compromise decree which is not altogether void but only voidable, i.e. entered into by fraud, undue influence or misrepresentation, then the matter is not within the ambit of R.3 of Order 23 and must be left to be decided by a separate suit. An appeal was provided under Order 43, R.1(m) against recording or non-recording of the compromise. Therefore, the law as it stood, apart from filing an appeal under Order 43, Rule 1(m), recourse can be had against the compromise decree by way of filing a separate suit.