TaxTMI 
TaxTMI 
TaxTMI 
2020 (5) TMI 743
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The case in shorn of the Appellant-Plaintiff is that the land described in Schedule 1 of the plaint originally belonged to Lakhan Singh who died leaving behind three sons, namely, Din Dayal Singh, Jalim Singh and Kunjan Singh. Din Dayal Singh is said to have died issueless during lifetime of his father and his other brother, namely, Jalim Singh also died leaving behind a son Ram Nath Singh and two daughters Sampatiya and Soniya. As regards the third son Kunjan Singh, he is said to have died issueless but prior to his death he gifted the land of his share to Sampatiya on the basis of a gift deed dated 10th July, 1978 which came on possession over her. 4. The further case of the Appellant is that one Salehari wife of Satyanarayan Prasad claiming herself to be the daughter of late Kunjan Singh filed a partition suit 13/78 in the Court of Munsif, Chapra for setting aside the aforesaid gift and for partition of her share in the ancestral property. In that suit, Sampatiya, Dulari Devi, Ram Nath and Soniya were impleaded as party Respondents-Defendants. Ram Nath died during pendency of the proceedings and only Sampatiya contested the suit. It was further stated that suit was dismissed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... compromise decree was passed by the High Court dated 15th September, 1994. The extract of the terms of compromise is reproduced ad infra: That the said compromise has been reached on following terms and conditions: (i) That the Respondent No. 1 (Sampatiya D/o Late Jalim Singh) accepts that the Plaintiff-Appellant Salehari Devi is the daughter of Kunjan Mahto. (ii) That Respondent No. 1 accepts the alleged deed of gift dated 10.7.1987 executed by Kunjan Mahto in favour of Respondent No. 1 is illegal, void and in-operative and that Respondent No. 1 derived neither title nor possession on account of the said deed of gift. (iii) That it is accepted by the Respondent No. 1 that the Plaintiff Appellant Salehari Devi after the death of her father Kunjan Mahto came in possession of his properties as she was the sole surviving legal heir of her father, (iv) That the Plaintiff-Appellant accepts that she has got only half share in the entire suit properties and other half share belongs to Respondent No. 1 Sampatiya Devi. (v) That to remove vagueness as to which suit properties will go to whose share, it is made clear that schedule-I property of the plaint which is made annexure-1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecree which has seriously affected his right over the subject property in question and the only remedy available with the Appellant-Plaintiff was to file a suit claiming his right over the subject land in question which was created on the basis of a sale deed executed by one of the party to the proceedings dated 6th January, 1984 much before the compromise decree was passed by the High Court. 11. Learned Counsel further submits that when the previous suit filed by Salehari was dismissed on merits on 30th December, 1983, thereafter on 6th January, 1984, Sampatiya sold the suit property to the Appellant-Plaintiff on the basis of the gift deed executed in her favour. It was not open for Sampatiya to enter into the compromise against her pleadings without any consideration and such an act of Sampatiya clearly implies her collusion with Salehari in order to dishonestly and fraudulently defeat the rights of her vendor/the Appellant/Plaintiff for no forcible reason whatsoever. 12. Per contra, learned Counsel for the Respondents-Defendants while supporting the findings recorded by the High Court under the impugned judgment submits that at least the compromise decree which was executed be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. 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. 3A. 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. 14. What is emerged as a legislative intent has been considered in extenso by this Court in Pushpa Devi Bhagat (Dead) Through L.R. Sadhna Rai (Smt.) v. Rajinder Singh and Ors. 2005 (5) SCC 566, after taking note of the scheme of Order 23 Rule 3 and Rule 3A added with effect from 1st February, 1977. The relevant paragraphs are as under: 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 to the specific bar contained in Section 96(3) Code of Civil Procedure. (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. (ii....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 of the provisions of Order 23 Rule 3-A Code of Civil Procedure. That is precisely what has happened in the case at hand. When the Appellant filed OS No. 5326 of 2005 to challenge the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eof is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise Under Rule 3 of Order 23. Being conscious of this fact that the right of appeal against the order recording a compromise or refusing to record a compromise was being taken away, a new Rule 1A was added to Order 43 which is as follows: 1-A. Right to challenge non-appealable orders in appeal against decree.-- (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. 19. Thus, after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23 Code of Civil Pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ich could be examined independently by the Court on its own merits in accordance with law. The trial Court in any case would not be competent to adjudicate the grievance of the Appellant herein in respect of the validity of compromise decree dated 15th September, 1994 passed by the High Court in the partition suit. 22. In other words, the Appellant can only claim through his predecessor-Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the Appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the Appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil Court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 Code of Civil Procedure. It must, therefore, foll....