The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR I.A. No.974 of 2025 (Arising out of CMP No.437 of 2025) Rokiya Bibi & another …. Petitioners Mr. S.K. Mishra, Senior Advocate along with Mr. J. Pradhan, Advocate -Versus- Sk. Nasim & others …. Opposite Parties Mr. A. P. Bose, Advocate for Opposite Party No.1 CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING: 12.08.2025 DATE OF ORDER:10.11.2025 1. Instant IA is at the behest of opposite party No.1 seeking modification of the Court’s order dated 12th May, 2025 in CMP No.437 of 2025 on the grounds stated therein. 2. In fact, the CMP was disposed of by this Court by order dated 12th May, 2025 with a direction to the learned Senior Civil Judge, Balasore to proceed and to dispose of the suit in C.S. No.1692/1082 of 2018-(I) within the stipulated period, while modifying the order dated 21st February, 2025 in F.A.O. No.17 of 2022 of the learned 3rd Additional District Judge, Balasore directing the parties to maintain status quo Page 1 of 13 also in respect of the Schedule-B property without further
Legal Reasoning
3. Heard Mr. Mishra, learned Senior Advocate appearing for the petitioners and Mr. Bose, learned counsel for opposite party No.1. 4. By this Court’s order dated 18th October, 2023 in CMP No.1149 of 2023, re-hearing of the F.A.O was directed, whereafter, the learned Court below passed the impugned order vide Annexure-9 to the CMP dismissing the same confirming the order of the learned Senior Civil Judge, Balasore in I.A. No.380 of 2018. In the appeal, the maintainability of such a relief vis-(cid:224)-vis compromise decree passed in an earlier suit i.e. C.S. No.946 of 2007-(I) was questioned and the learned Court below considering the same concluded that there should not be any injunction in respect of Schedule-B property, however, upheld the status quo order with respect to Schedule-C property. The aforesaid order in appeal dated 21st February, 2025 at Annexure-9 was finally modified in the CMP, which is sought to be modified, at present. 5. The contention of Mr. Bose, learned counsel for opposite party No.1 is that the suit instituted by the petitioners is not maintainable because Schedule-B property was already involved in the previous suit, decree of which, cannot be a subject of challenge in the suit instituted and pending before the learned court below in view of Order 23 Rule 3-A CPC. The further submission is that injunction having been Page 2 of 13 refused, the status quo vis-(cid:224)-vis the parties directed by this Court, while disposing of the CMP in respect of Schedule-B property is certainly to prejudice opposite party No.1 and the purchasers and hence, the order dated 12th May, 2025 passed therein is required to be modified. 6. On the other hand, Mr. Mishra, learned Senior Advocate for the petitioners would submit that since the petitioners are having legitimate interest over and in respect of Schedule-B property besides the property under Schedule-C, in order to avoid alienations in future, this Court directed both the sides to maintain status quo, hence, therefore, the order dated 12th May, 2025 in the CMP is perfectly justified and hence, need not be recalled. 7. The petitioners are seeking relief of partition, injunction and to declare the compromise decree in C.S. No.946 of 2007-(I) to be invalid, inoperative and not binding to them in respect of Schedule-B property. A copy of the plaint is at Annexure-1 and the same is gone through. In the suit, the petitioners moved an application under Order 39 Rules 1 and 2 CPC as per Annexure-2 demanding interim order in respect of the Schedule-B and C properties morefully described in Annexure-1 and therein, a status quo order only in respect of the Schedule-C property was passed and it was challenged in F.A.O. No.17 of 2022 and though, partly modified by order dated 8th September, 2023 but finally, stood confirmed vide Annexure-9 upon a rehearing and its disposal directed pursuant to the order in CMP Page 3 of 13 No.1149 of 2023. As against the order in appeal, the petitioners filed the CMP with a plea that they have a specific claim clearly pleaded on record in respect of Schedule-B property being the exclusive interest of their mother in contrast to the plea that it was succeeded by defendant No.1 alone on the basis of an oral gift dated 10th May, 2004 followed by the compromise decree in C.S. No.946 of 2007-(I). 8. The contention of Mr. Mishra, learned Senior Advocate is that the learned Court below fell into error and confirmed the order at Annexure-6 in I.A. No. 380 of 2018 while dealing with the suit and in so far as Schedule-B property is concerned, it has been the subject of alienation by defendant No.1 in favour of defendant Nos.3 to 9 but the learned Court below even though took judicial notice of the Will of the year, 2007 and the claim of the mother of the petitioners virtually denying any such oral gift having been executed in favour of the defendant No.1, declined to pass restraint order in respect thereof and hence, it was questioned in the CMP and rightly, therefore, this Court considering all such aspects directed parties to maintain status quo to avoid any alienations by defendant Nos.3 to 9 till disposal of the suit. 9. Mr. Bose, learned counsel for opposite party No.1 relies on the decision of the Apex Court in Triloki Nath Singh Vrs. Anirudh Singh (D) through LRs and others (2020) 4 S.C.R. 650 to contend that the petitioners cannot challenge a compromise decree in the suit not being a party thereto in Page 4 of 13 view of the bar contained in Order 23 Rule 3-A CPC and hence, the learned Trial Court is having no competence to adjudicate and dispose of the suit and therefore, any such
Decision
order in the CMP vis-s-vis Schedule-B property is impermissible, thus, to be modified confining it only to Schedule-C property. 10. In CMP No.1149 of 2023, opposite party No.1 had challenged the order in F.A.O No.17 of 2022 dated 8th September, 2023 when the decision dated 16th April, 2022 of the learned Senior Civil Judge, Balasore in I.A. No.380 of 2018 was partly set aside directing status quo even in respect of Schedule-B property and therein, this Court considering the plea advanced with reference to the decision of Triloki Nath Singh (supra) restored the appeal and directed for a fresh consideration and disposal after providing opportunity of hearing to both the parties regard being had to the observations made therein. After the disposal of the CMP, complying the direction issued therein by order dated 18th October, 2023 at Annexure-8, the learned Court below passed the impugned order i.e. Annexure-9 confirming the order in I.A. dated 16th April, 2022. While dealing with the appeal, the learned Court below concluded that the petitioners do not have a prima facie case and taking cognizance of the facts pleaded on record, reached at a conclusion that the order dated 16th April, 2022 in I.A. No.380 of 2018 is needed to be affirmed. Page 5 of 13 11. In Triloki Nath Singh (supra), it has been held and observed that any such suit separately instituted challenging the validity of compromise decree by a stranger is not maintainable in view of the prohibition in Rule 3-A of Order 23 CPC. According to Rule-3-A, no suit shall lie to set aside the decree on the ground that the compromise, on which, it is based, was not lawful. In fact, Order 23 Rule 3-A CPC was introduced by way of the Civil Procedure Code (Amendment) Act, 1976 vide Section 74 thereof with effect from 1st February, 1977. As a result, a party challenging a compromise decree may file an application under Proviso to Rule 3 of Order 23 or appeal under Order 43 Rule 1-A CPC since it is no more appealable with Clause (m) of Rule 1 of Order 43 CPC to have been omitted vide the Amendment Act but not with a separate suit instituted. In other words, in view of the above provisions, when a compromise is recorded in a disposed of suit and the same is to be avoided, a party aggrieved thereby cannot file one more but to question its validity in one of modes discussed hereinabove. 12. In so far as the suit of the petitioners is concerned, the same is for declaration of compromise decree as invalid, partition and injunction in respect of the Schedule-B and C properties. The parties are Mohammedans and guided under the Hanif School of Mohammedan Law. Of course, the compromise decree dated 8th October, 2007 in C.S. No.946 of 2007-(I) of the learned Civil Judge(Senior Division) Balasore and Mutation RoR prepared thereafter in the name of Defendant No.1 and sale deeds executed in favour of Page 6 of 13 defendant Nos.3 to 9 are under challenge with a declaration that the same to be void as against their legitimate shares but considering the plea of opposite party No.1 that such a declaration is impermissible in view of Order 23 Rule 3-A CPC, the Court is of the humble view that there is a need for modification of the order dated 12th May, 2025 in the CMP since the petitioners are not entitled to demand any such relief vis-(cid:224)-vis the compromise decree passed in the earlier suit. The order of status quo including Schedule-B property cannot therefore be retained on the premise that there would be further alienation by defendant Nos.3 to 9, who admittedly derived the title in respect thereof from defendant No.1, who, in turn, claimed to have acquired the interest over the same by virtue of the transactions allegedly carried out by his mother. 13. It has been brought to the notice of the Court by Mr. Bose, learned counsel for opposite party No.1 that CMA No.218/98 of 2025 is filed in the meantime in C.S. No.946 of 2007-(I) by the petitioners challenging the compromise and the decree passed therein on the ground that the same is not lawful and it is pending orders before the Court of learned Senior Civil Judge, Balasore. It is further submitted by Mr. Bose, learned counsel that the petitioners finally acknowledged the fact that the suit is not maintainable for a declaration vis-a-vis compromise decree as invalid by filling the CMA and in such view of the matter, the order dated 12th May, 2025 of this Court in the CMP should be modified confining the order of status quo to Schedule-C property. Page 7 of 13 14. For better appreciation, the relevant provisions are extracted herein below: “3. Compromise of suit-Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful 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 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: compromise agreement, such the other Provided that where it is alleged by one party and denied by 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. agreement Explanation.-An 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. 3-A. Bar to suit - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.” 15. In Triloki Nath Singh (supra), while dealing with maintainability questioning the validity of a compromise Page 8 of 13 decree passed in another suit, it has been held and observed by the Apex Court in the following words: “14. What has emerged as a legislative intent has been considered in extenso by this Court in Pushpa Devi Bhagat (Dead) Through LR Sadhna Rai (Smt) Vs. Rajinder Singh, after taking note of the scheme of Order 23 Rule 3 and Rule 3-A added with effect from 1-2-1977. The relevant paragraphs are as under: to “17. The position that emerges from the amended provisions of Order 23 can be summed up thus: (i) No appeal is maintainable against a consent decree having regard the specific bar contained in Section 96(3) CPC. (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. and that establish 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 there was no it, compromise. In that event, the court which recorded the compromise will itself consider and decide the 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 Page 9 of 13 in R. the validity of the depends wholly on agreement or compromise on which it is made.XXX”. 15. The scope of intent of Order 23 Rule 3 and Rule 3-A was further considered by this Court Rajanna Vs. S.R. Venkataswamy and Others wherein this Court held as under: “11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3-A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view Page 10 of 13 of the provisions of Order 23 Rule 3-A CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3-A CPC. Having the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court.” the plaint rejected, thus got 16. The conclusion of the Apex Court in the decision (supra) is based on the underlying principle to put an end to the various disputes pending before the Courts once and for all creating a bar to institute another suit to challenge the decree managed by a compromise. In the facts and circumstances of the case at hand, the petitioners have instituted the suit for a declaration and also claiming partition in respect of all the properties with permanent injunction and though, any such interim order of injunction via-a-vis Schedule-B property has been denied by the learned Courts below and rightly so, the Court is of the humble view that the order of status quo cannot be sustained, when it is certainly to prejudice the defendants who, as on date, are possessed of a valid decree (unless declared unlawful and avoided) obtained in C.S. No.946 of 2007-(I). According to the Court, the suit may be Page 11 of 13 maintainable to the extent concerning other reliefs except the declaration and the petitioners are definitely to be affected, if future alienations do take place but cannot avoid it, unless the compromise decree is set aside. Of course, the fate of the suit for partition is dependent on the result in CMA No.218/98 of 2025 but till such time, the plea of the petitioners is accepted and the decree on compromise is nullified and invalidated it would not be proper and justified to direct status quo in respect of Schedule-B property, which, as on date, is validly possessed by the defendants, who acquired interest therein by purchases made. To be honest, the said aspect escaped the attention of this Court, while disposing of the CMP at the stage of admission. The bar under Order 23 Rule 3-A CPC is certainly a ground to demand modification of the Court’s order dated 12th May, 2025 in the CMP since the suit for a declaration though coupled with other reliefs is filed but not sufficient enough to interfere with the rights of the defendants, who acquired the interest post-alienation by defendant No.1, against whom, partition is pleaded involving all the properties. For the discussions hereinabove, the Court is constrained to hold that the decision in the CMP needs a revisit thereby modifying the order of status quo excluding therefrom the Schedule-B property. 17. Hence, it is ordered. 18. In the result, the I.A. stands allowed. As a necessary corollary, the Court’s order dated 12th May, 2025 in CMP Page 12 of 13 No.437 of 2025 is hereby modified confirming the decision of the learned 3rd Additional District Judge, Balasore in F.A.O. No.17 of 2022 dated 21st February, 2025 as at Annexure-9, thus, restricting the order of status quo only in respect of Schedule-C property leaving it open for the petitioners to work out the remedy demanding interim orders vis-a-vis Schedule-B property in CMA No.218/98 of 2025 filed by them questioning the validity of compromise decree passed in C.S. No.946 of 2007-(I). 19. In the circumstances, there is no order on costs. 20. Urgent copy of the judgment be issued to the petitioners as per rules. Balaram (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 11-Nov-2025 13:23:11 Page 13 of 13