SHAKUNTALA Vs. KAMAL SINGH

JUDGEMENT

(1.) THIS civil first appeal under Sec. 96 C.P.C. has been filed against the judgment and decree dt. 01.11.2012, passed by the Additional District Judge No. 1, Bharatpur whereby the suit for specific performance filed by the plaintiff -respondent No. 1 (hereinafter 'the plaintiff') against the defendant -respondent No. 2 (hereinafter 'the defendant') was decreed on the basis of a compromise between the plaintiff and the defendant. The appellants were not a party in the underlying suit decreed on consent as aforesaid, but state to be the assignees of the defendant under a registered sale -deed dt. 06.09.2011 qua the suit land and submit that the consent decree dt. 01.11.2012 between the plaintiff and the defendant is fraudulent, works to their obvious disadvantage and entitles them to file a regular civil appeal under Sec. 96 CPC. The appellants' submission is that the judgment and decree dt. 01.11.2012 based on the plaintiff's fraudulent consent at a time he had no interest in the suit property is liable to be set aside. The question which arises in the present appeal is as to whether an appeal by a stranger not a party in the suit against a compromise decree is maintainable in spite of the disbarment under Sec. 96(3) C.P.C. which provides that no appeal shall lie from a decree passed by the Court with the consent of parties.

(2.) MR . Manoj Bhardwaj, appearing for the appellants, submits that the bar under Sec. 96(3) C.P.C. is not an absolute bar and a challenge to a compromise decree can be made under the said provision with the aid of Order 43 Rule 1A(2) C.P.C. which provides that in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. It was submitted that as the registered owner of the suit property in respect of which a decree for specific performance came to be passed on a collusion between the plaintiff and the defendant, the appellants have the right to file the present appeal on the ground that the compromise between the plaintiff and defendant was unlawful. Counsel submits that in the event the appellants were not allowed to agitate the appeal against the compromise decree dt. 01.11.2012, they would be rendered remedy less inasmuch as Order 23 Rule 3A C.P.C. provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. It was submitted that it cannot have been an intention of the legislature to render an aggrieved party remedy less and in view of the absolute bar under Order 23 Rule 3A C.P.C. with regard to the laying of a separate suit challenging a compromise decree, this appeal is maintainable.

(3.) HEARD the counsel for the parties and perused the impugned judgment and decree dt. 01.11.2012.