SRI ISWAR GOPAL JEW Vs. BHAGWANDAS SHAW

JUDGEMENT

(1.) The above suit was instituted by the plaintiff for eviction of the defendant from the suit property as a trespasser and a decree for Rupees 1,09,600/- by way of mesne profit etc. The plaintiff alleged that pursuant to an agreement for lease by and between the parties. the plaintiff agreed to let out the suit property to the defendant for 86 years on terms and conditions contained in the draft approved lease and the defendant deposited Rupees 1,00,000/- with the plaintiff by way of salami to be forfeited on failure of the defendant to execute the lease. The possession of the suit property was delivered to the defendant pursuant to the said agreement. The defendant failed and neglected to execute the lease. Therefore the said deposit was forfeited by the plaintiff in terms of the agreement and the suit was instituted for recovery of possession. In the written statement the defendant alleged that he was in possession of the suit property as a thika tenant prior to the agreement for lease. It was denied that there was any failure or negligence on the part of the defendant to execute the lease. A cross suit was filed by the defendant against the plaintiff, being Suit No. 2740 of 1968 for specific performance of the said lease. This suit was also ready for hearing. The evidence in the above suit was closed and the matter was adjourned for argument. After several adjournments, the above matter was taken UP on 2-2-1981 when I enquired of the counsel for both the parties whether any settlement was possible. There-after discussions were held between Mr R. C. Deb of M/s. G. C. Chunder and Co., the Advocate On record of the plaintiff and Mr. p. K. Roy. senior counsel for the defendant. in open Court. The junior counsel of the plaintiff Mr. Prabir Roy Chowdhury also was present. Certain terms wore agreed between the parties and on that basis I dictated the said agreed terms and a consent decree was passed by consolidating the two suits.

(2.) The present petition has been taken out on behalf of the plaintiff in the above suit for setting aside or amending the said consent decree and this petition is supported by the supporting affidavit of Mr. R. C. Deb affirmed on 6-3-1981. The case made out in the petition was that Mr. R. C. Deb was under a mistaken apprehension that the dictated terms would be the basis of further negotiation between his client and the defendant. Mr. Deb never consented to a decree being passed. Another point taken by the petitioner in his affidavit-in-reply was that the consent decree was not in writing nor the same was signed by the parties. Therefore it was not binding. In the affidavit-in-opposition, the defendant categorically denied the petitioner's allegations and alleged that a consent decree was passed by agreement between the parties of which Mr. R. C. Deb had full knowledge and in proof thereof, several documents were annexed to the affidavit-in-opposition.

(3.) According to Mr. p. K. Roy, the counsel for the defendant, a suit is the proper proceeding for setting aside a consent decree and a review under Order 47. Civil P. C. Or an application under Section 151 of Civil P. C. would not lie. In support of his contention he relied on (1909) 13 Cal WN 1197 (Mussammat Gulab Koer v. Badshah Bahadur) and AIR 1929 Cal 470. (J. C. Galstaun v. Pramatha Nath Roy). Mr. N. C. Roy Chowdhury, counsel for the petitioner submitted, that law had since been changed due to the amendment of the Civil P. C. in 1976. Under Order 23 Rule 3A, of C. P. C. no suit will lie to set aside a consent decree if the same is unlawful. To appreciate his argument it is necessary to look into the amended provisions of Order 23. Rules 3 and 3A:--