Patna High Court
Case Details
Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.123 of 2011 ====================================================== Bimalendu Biswas & Ors Versus .... .... Appellant/s Most Anand Moyee Devi @ Moitrayee Biswas & Ors. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shailendra Kumar Jha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 7 13-03-2013 1. Heard the learned counsel, Mr. R.J.Maharaj appearing on behalf of the appellants and Dr. S.K. Mishra, appellant no.16 appearing in person and the learned counsel, Mr. Najmul Bari appearing on behalf of the supporting respondent nos.10 and 11 on I.A. No.4369 of 2011 and the other I.As. i.e. stay application and injunction application being I.A. No.7591 of 2012 and 1470 of 2013. 2.
Legal Reasoning
This First Appeal has been filed by the appellants against the compromise judgment and preliminary
Legal Reasoning
decree dated 31.07.1996 passed by Sri P.K.Lal, 7th Subordinate Judge, Bhagalpur in Title Suit No.186 of 1984. It appears that said Title Suit No.186 of 1984 was filed by the plaintiff- respondent nos.2 to 5 for partition of the suit property claiming to Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 2 the extent of half share. Since there is delay of about 14 years 8 months and 4 days in filing the appeal, a separate limitation application has been filed by the appellant being I.A. No.4369 of 2011. 3. The learned counsel for the appellants as well as the appellant no.16 appearing in person submitted that earlier Misc. Case No.13 of 1996/5 of 2002 was filed by respondent nos.10 and 11 including the appellant nos.14 to 16 challenging the order dated 31.07.1996 on the ground that compromise decree was obtained by practicing fraud and the compromise petition is itself fraudulent petition. Besides this, various other pleas were taken. 4. According to the appellants, by terms of order dated 07.06.2002, the trial court after considering the evidences and the materials available on record, recorded finding that appellant no.16, Dr. S.K.Mishra, attorney of petitioner nos.1 and 2 has no right to initiate the proceeding singularly in exercise of power given under the attorney. The trial court also recorded the finding that the petitioners have not been able to prove that the compromise petition, partition map and memorandum of partition does not bear the signature of petitioner nos.1 and 2 and even otherwise, the compromise is unlawful. Accordingly, the trial court held that the compromise order dated 31.07.1996 is not Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 3 liable to be recalled. Against the said order, the petitioners therein filed Civil Revision No.945 of 2002 before the High Court. This court by order dated 21.05.2004 allowed the said revision application. Against the said order, the plaintiffs filed Civil Appeal No.2728 of 2006 before the Apex Court. The Hon’ble Supreme Court by terms of the judgment dated 15.04.2011 allowed the appeal and the order passed by this court was set aside and the order dated 07.06.2002 passed by the Sub Judge V, Bhagalpur was restored. Some of the appellants herein thereafter filed review application before the Apex Court and the Apex Court by order dated 13.09.2011 held that the Civil Appeal stands abated against respondent nos.7, 13 and 15 and the review application was dismissed accordingly. Therefore, the appellants filed this First Appeal after the dismissal of the review application before the Apex Court. Because of this fact, the delay occurred and in the facts and circumstances of the case, the delay is liable to be condoned. 5. The learned counsel appearing on behalf of respondent nos.10 and 11 supported the contention of the appellants. 6. Admittedly, this First Appeal has been filed against a compromise decree dated 31.07.1996. The only Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 4 grievance of the appellant is that all the parties have not signed the compromise decree or that the decree has been obtained fraudulently or that the compromise application itself is fraudulent and unlawful compromise application. It may be mentioned here that so far this submission of the appellant is concerned, Misc. case was filed before the court below by some of the appellants being Misc. Case No.13 of 1996/5 of 2002. 7. Order 23 Rule 3 C.P.C. reads as follows: such agreement, compromise in part by any
Decision
“3. Compromise of suit – Where it is proved to the satisfaction of the Court that a suit has been lawful adjusted wholly or agreement or compromise (in writing and signed by the parties), or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject- matter of the suit) : (Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.) Explanation added in this Rule 3 is as follows: Explanation:- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872(9 of 1872), shall not be deemed to be lawful within the meaning of this rule. Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 5 8. Therefore, in view of the aforesaid provision of the C.P.C., the party disputing the compromise is required to file application before the same court and rightly they filed the Misc. case. The said fact was investigated and the court below after considering the evidences and materials recorded the finding that the petitioners therein failed to prove this fact. 9. In the case of Pushpa Devi Bhagat vs. Rajendra Singh, (2006) 5 Supreme Court Cases 566 at paragraph 17, the Apex Court has held as follows: that emerges from “17. The position the amended provisions of Order 23 can be summed up thus : (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96 (3) C.P.C. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the Court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the Court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the Court which recorded the compromise will itself consider and decide the Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 6 the challenged question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the Court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.08.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.08.2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96 (3) of the Code.” 10. In view of the above settled principles of law laid down by the Apex Court, the only remedy available to the appellant was to approach to the court which recorded the compromise and rightly the appellants approached the trial court by filing Misc. case which went upto the Apex Court. In the decision, Pushpa Devi Bhagat(supra), the Apex Court has held that the appeal challenging the consent decree is barred under Section 96(3) of the Code of Civil Procedure. 11. According to the learned counsel for the appellants, the appeal is maintainable under Order 43 Rule 1A(2) of the Code of Civil Procedure. Order 43 Rule 1A C.P.C. reads as Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 7 follows: “1A. Right to challenge non-appealable orders in appeal against decrees- (1) where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) 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.” 12. In view of the above provision, if the compromise is disputed then only the order regarding the compromise can be challenged in appeal against the decree. Where the compromise is not disputed it will be barred under Section 96(3) C.P.C. In the present case, the appellants herein availed the remedy by filing Misc. case before the court. The legality or otherwise of the order passed in the Misc. case was challenged before the High Court and consequently before the Apex Court and the Apex Court by the order aforesaid as referred to by the appellant, upheld the order passed by the trial court. Now, again the same question is being raised before this High Court that the compromise decree is fraudulent and that all the parties have not signed the compromise application or that the compromise petition itself is fraudulent and unlawful. Since the Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 8 said matter has already been concluded upto the Apex Court, the legality or otherwise of the said order passed by the trial court in the Misc. case cannot be re-examined by this court and no contrary finding can be recorded against the order of the trial court particularly when the said order has already been confirmed by the Apex Court. 13. In the case of Gauri Shankar Pathak & Ors. vs. Dr. Shankaranand Upadhyay & Ors., 2011(2) PLJR 547, this court relying on the case of Pushpa Devi Bhagat(supra) at paragraph 25 and 26 held as follows: and executed “25. In view of the above provision, if the compromise is disputed then only the order regarding the compromise can be challenged in appeal against decree. Where the compromise is not disputed, it will be barred under Section 96(3) C.P.C. In the present case, the father of these appellants was defendant No.1 who Vakalatnama appeared appointing his Advocate in the Court below. He also signed the joint compromise application and his Advocate also signed the compromise application as would be evident from the order passed by the learned Court below in Misc. Case No.3 of 1998. Chunchun Pathak died one year after the recording of the compromise but then he never disputed the compromise. Only after his death, the appellants filed Misc. Case No.3 of 1998 and prayed for stay of preparation of final decree and, therefore, the Court did not prepare final decree. However, ultimately, the Misc. case was dismissed and the appellants filed Civil revision and in Civil Revision, this Court stayed further proceeding and, therefore, the decree could not be prepared. The decree Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 9 has been prepared and signed on 03.04.2010 only after dismissal of the civil revision application. Since the appellants have already challenged the order dated 13.09.1996 by filing Misc. Case No.3 of 1998 before this Court and even now, the matter is pending before the Hon’ble Supreme Court, now, they cannot be allowed to challenge the said order dated 13.09.1996 again in this Appeal. The decision of the Hon’ble Supreme Court in Pushpa Devi Bhagat case (Supra) clearly applies in the present facts and circumstances of this case. 26. Now, let us consider the position if the appellants are allowed to challenge the said order dated 13.09.1996 in this First Appeal. The appellants shall again contend the same thing and advanced the same argument which was enquired into in the trial by the trial Court in Misc. Case No.3 of 1998 and the legality or otherwise of the order of the trial Court was tested before this Court by filing civil revision. It is well settled principal of law that revisional jurisdiction is a part of appellate jurisdiction. While sitting in appeal against final decree, this Court cannot again consider the legality or otherwise of the order passed by the trial Court in Misc. Case No.3 of 1998 and differ and take contrary view then taken by this Court in revisional jurisdiction in civil revision filed by the appellants. Moreover, the order passed by the trial Court in Misc. Case No.3 of 1998 cannot be challenged in this First Appeal which is being challenged before the Hon’ble Supreme Court and moreover it is not impugned in this appeal.” 14. It may be mentioned here that in the case of Gauri Shankar Pathak, the Miscellaneous case was pending before the Supreme Court whereas in the present case at our hand, the Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 10 Misc. case as well as the review applications have already been disposed of by the Hon’ble Supreme Court and the order of the trial court has been upheld. The order of the trial court is not impugned in this First Appeal and could not have been impugned. Now, therefore, some of the appellants have already tested the legalities or otherwise of the trial court’s order passed in the Misc. case filed under proviso to Order 23 Rule 3 read with Section 151 C.P.C. in properly constituted proceeding which has been concluded upto the Apex Court. The said order could have been challenged by the appellants in the First Appeal that might have been filed against the preliminary decree. Here, the finding of the trial court is against the appellants and that finding is not subject matter of this appeal, therefore, the correctness or otherwise of the findings recorded in Misc. case cannot be decided in this appeal particularly when the same has been tested upto the Apex Court. Therefore, the legality of the order cannot be challenged again under Order 43 Rule 1(2) of the Code of Civil Procedure. 15. The contention of the learned counsel for the appellants is that since they were pursuing the matter upto the Apex Court, the long delay of about 14 years 8 months 4 days is liable to be condoned. So far this submission is concerned, cannot be accepted. It is not their case that they were pursuing the matter Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 11 by filing Misc. case which was not the proper remedy. Had it been the case of the appellants that they were pursuing the matter bonafidely before wrong forum, the matter would have been otherwise. Here, some of the appellants challenged the order by which compromise was recorded upto the Apex Court. The other appellants waited till the disposal of the review application by the Apex Court. Now, they are coming before this court and saying that since the review application has been dismissed, they are filing this appeal after about more than 14 ½ years. 16. In view of the above facts, some of the appellants have already challenged the order recording the compromise according to the procedure prescribed by law. Instead of filing Misc. case, the appellants could have filed appeal against the decree and in that appeal they could have challenged the order recording compromise but they challenged the said order by filing Misc. case. The distinction between these two provisions is that without filing Misc. case, the appellants could have filed the appeal against the decree wherein they could have contended that the compromise should or should not have been recorded in view of the provision as contained in Order 43 Rule 1A(2). The other procedure is the appellants availed the provision as contained in proviso to Order 23 Rule 3 C.P.C. Once they challenged the said Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 12 order under this provision, the same cannot be challenged in another provision. Both remedies are not available. 17. So far the contention of the learned counsel for the appellants that only some of the appellants have filed Misc. case and the others did not is concerned, it may be mentioned here that so far the appellants who did not file the Misc. case challenging the order recording compromise were not pursuing their remedy before any forum for last 14 years 8 months and odd days. No sufficient cause has been shown as to why they did not file appeal during this period. So far the appellants who had filed Misc. case have already availed their remedy upto the Apex Court. 18. In view of the above facts and circumstances of the case and the settled law laid down by the Apex Court, in my opinion, it cannot be said that the appellants were pursuing the matter before wrong forum bonafidely, therefore, the delay is liable to be condoned. 19. In view of my above discussion and the settled principles of law laid down by the Hon’ble Supreme Court, this First Appeal filed by the appellants against compromise decree dated 31.07.1996 is barred under Section 96(3) C.P.C. Accordingly, it is held that this First Appeal is not maintainable against the compromise preliminary decree dated 31.07.1996 as Patna High Court FA No.123 of 2011 (7) dt.13-03-2013 13 such, it is dismissed as not maintainable. Since the appeal itself to be held not maintainable, there is no question of condoning the delay arises. Moreover, the appellants have failed to show sufficient cause for condoning the delay in view of the discussion made above. Therefore, the limitation application is also liable to be dismissed. Since the appeal has been dismissed as not maintainable and also barred by law of limitation, the other I.As. i.e. stay application and injunction application referred to above are also rejected. Saurabh/- (Mungeshwar Sahoo, J)