A.N. Venugopala Gowda, J.
1. This second appeal is against the Judgment and Decree dated 16.11.96 passed by Principal Munsiff, Kola-in O.S. No. 523/90 which was affirmed by Addl. Civil Judge (Sr. Dn.), Kolar in R.A. No. 1/97 dated 03.02.03.
2. Appellant is the original defendant. Respondent is the original plaintiff. For the sake of convenience, the parties will be referred hereinafter with reference to their rank in the suit.
3. Facts which have given rise to this appeal are as follows:
Plaintiff and defendant are the wife and husband. Defendant was the owner of plaint schedule property. He had executed in favour of plaintiff, a Mahar deed, dated 30.12.87, which was registered. Plaintiff and defendant have amongst them three children. Disharmony having come into existence, plaintiff and defendant are living separately. Defendant had instituted O.S. No. 584/89 on the file of Munsiff, Kolar, against plaintiff for decree of declaration of title and for permanent Injunction in respect of suit property. According to the plaintiff, defendant by playing fraud and by resorting to acts of impersonation, has got filed a compromise petition in the said suit, based on which, the suit was decreed on 6.9.89. Contending that, defendant is guilty of playing fraud and misrepresentation on the Court in O.S. No. 584/89 and alleging that she was not served with summon of the said suit and she had not engaged any advocate and did not appear In the proceedings nor was a party to the compromise petition and that the decree passed therein is unlawful and seeking declaration to the effect that the decree passed in O.S. No. 584/89 is void, illegal and not binding on the interest of the plaintiff and for cancellation of the decree and also for decree of permanent Injunction restraining the defendant from entering into any contract by way of sale, gift, mortgage or any encumbrance in respect of the suit property, present suit was instituted. Defendant by appearing through counsel, has filed written statement inter alia contending that, O.S. No. 584/89 filed by him against plaintiff herein was lawfully prosecuted and due to the intervention of well wishers, the matter was compromised and a consent decree based on the compromise petition was passed and that he is in possession and enjoyment of the property. He has denied the allegations that fraud was practised on the Court by resorting to act of misrepresentation. According to him, the decree passed in O.S. No. 584/89 is lawful. He contended that, the subsequent suit is not maintainable, since the decree passed in O.S. No. 584/89 is binding on plaintiff.
4. Considering the material proposition of facts; and law averred by the parties to the suit, Trial Court raised 8 issues. It is significant to note that, though maintainability of the suit was pleaded, no issue was raised for consideration. Plaintiff deposed as PW-1 and examined a witness as PW-2 and marked as Exs.P1 to P9. Defendant has deposed as DW-1 and marked as Exs.D1 to D23. Apart from the same, Exs.C1 to C4 were marked in the course of cross-examination of DW-1. Considering the record, Trial Court decreed the suit with costs. Aggrieved, defendant filed appeal. Appellate Court considering the record of suit and the contentions raised in appeal memo and also urged at the time of hearing, raised the following 3 points for consideration:
(1) Whether the respondent/plaintiff has established that she has never entered the compromise petition filed O.S. No. 584/89 and therefore the decree in that case is not binding on her?
(2) Whether the appellant/defendant has established that the Judgment and Decree of the Trial Court is opposed to the law, facts and circumstances of the case and therefore unsustainable?
(3) What order?
5. The First Appellate Court has answered the first point in the affirmative, second point in the negative and has concluded that the appeal is devoid of merit and has dismissed the same with costs. Aggrieved thereby, this second appeal was preferred which was admitted to consider the following substantial question of law:
Whether a separate suit between the same parties Is maintainable for setting aside the earlier compromise decree proceedings, In the light of the provisions under Order 23 Rule 3A of CPC?
6. I have heard Sri Janardhan G. learned Counsel for appellant and Sri. Mustaq Ahmed, learned Counsel for respondent and perused the record.
7. Learned Counsel for appellant contended that, the Courts below have acted illegally in passing the impugned decrees without noticing the bar regarding maintainability of the suit under Rule 3A of Order XXII] CPC. He pointed out that, in the written statement, specific plea with regard to maintainability of the suit both on facts and In law was raised, despite which, the Issue was not framed and answered by the Trial Court. He contended that, First Appellate Court has also erred in not noticing the aforesaid provision of law and the non-maintainability of suit and in affirming the decree passed illegally by the Trial Court. He relied upon the decision in the case of Pushpa Devi Bhagat (D) by Lr v. Rajinder Singh and Ors. reported in 2006 AIR SCW 3549 to contend that 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 3A of Order XXIII CPC. He contended that, it is open to the plaintiff herein who was the defendant in O.S. No. 584/89 to approach the Court which passed the decree therein and seek necessary relief and It is not permissible to file separate suit like the present one. Learned Counsel contended that, maintainability of suit goes to the root of the matter and once if the suit is held to be not maintainable, question of deciding the matter on merit does not arise. He further contended that, the Trial Court has assumed jurisdiction which is barred under law, which was not noticed by first appellate Court and hence require adjudication In this appeal.
8. Per contra, learned Counsel for respondent contended that, Trial Court has found the suit to be meritorious and decreed the same, which was affirmed by First Appellate Court and In view of the concurrent findings recorded by the Courts below, no substantial question of law much less the one framed at the time of admission arises for consideration and for want of substantial question of law, this appeal is not maintainable. He contended that, the allegations of impersonation and fraudulent acts on the part of defendant can be established in separate suit and hence, the present suit was filed and prosecuted and the bar under Rule 3A of Order XXIII CPC does not operate and the suit being maintainable, has rightly been decreed by the Trial Court and affirmed by the First Appellate Court, by considering the evidence on record. Learned Counsel made submissions in support of the impugned decrees and sought their upholding.
9. Considering the rival contentions of learned Counsel for the parties, substantial question of law raised for consideration and noticed supra, requires adjudication.
10. Indisputably, defendant had filed O.S. No. 584/89 which was decreed, based on a compromise petition. Whether the compromise petition was signed by the defendant In the said suit (plaintiff herein), whether the compromise Is lawful, whether there was impersonation and fraudulent acts and whether the decree passed therein is not lawful, is a matter which Is required to be decided by the Court which passed the said decree. In the case of Pushpa Devi Bhagat (supra), considering the provision of Order XXIII, it has been held as follows:
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) CPC.
(ii) No appeal is maintainable against the order of the Court regarding the compromise (or refusing to record a compromise) In view of the deletion of Clause (m) 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 3A.
(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 of 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 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.
(emphasis supplied by me)
11. In the case of Banwari Lal v. Smt. Chando Devi reported in : AIR1993SC1139 , the facts were, that suit had been filed in which, an alleged petition of compromise was filed, on the basis of which, the suit was dismissed. Later on, an application was filed alleging that, the alleged compromise petition itself was void, illegal and against the requirement of Rule 3 of Order 23 CPC and hence, the order made on such compromise be recalled, the suit be restored and be heard on merit. Said application was considered and was allowed, against which, a revision application was filed in the High Court, which was allowed, setting aside the order passed by Trial Court. When the order of High Court was challenged by the plaintiff/appellant, Hon'ble Supreme Court, considering the amendment made to Order 23 Rule 3 and Order 43 Rule 1(m) CPC, has held as follows:
13. When the amending Act Introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, 'the Court shall decide the question', the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise 'which is void or voidable under the Indian Contract Act...' shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even R.1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a, compromise can file a petition under proviso to Rule 3 of Order 23. or an appeal under Section 96(1) of the Code. In which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code.
(emphasis supplied by me)
12. Reverting back to the facts of the case, it could be seen from the averments made in the plaint, it has been contended by the plaintiff that, defendant has impersonated, played fraud, had brought some other lady, filed a compromise petition under Order XXIII Rule 1 CPC and as per the terms of compromise dated 06.09.1989, the suit was decreed, declaring the defendant as absolute owner of suit property. She has also alleged that defendant is guilty of playing fraud and misrepresentation on the Court since the summon of O.S. No. 584/89 was never served on her nor she had approached the named advocate to draft compromise nor is she a signatory to the compromise petition. According to her, defendant has got some other person in the place of herself and obtained the decree and hence the decree is not binding on her as she is not a consenting party to the compromise petition. By making such averments, the above noticed relief was sought in the present suit, which was contested by the defendant, both on the grounds of maintainability and merit. Considering the material propositions of facts and law, the Trial Court ought to have raised an issue on the maintainability of suit in view of the bar contained under proviso to Rule 3 of Order XXIII CPC and bar of suit under Order XXIII Rule 3A CPC. The First Appellate Court has also not raised a point for consideration in that regard nor has rendered any finding with regard to the maintainability of suit. Both the Courts below have failed to consider a very material aspect in the matter and have committed an illegality.
13. At this stage, It is useful to notice the relevant provisions i.e., the proviso to Rule 3 of Order XXIII with effect from 01.02.1977, which reads as hereunder:
PROVIDED that where it is alleged by one party and denied by the other than 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.-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.
Rule 3A of Order XXIII CPC was also added in Order XXIII with effect from 01.02.1977, which reads as follows:
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. According to plaintiff, the compromise petition dated 06.09.1989 filed in O.S. No. 584/89 is not lawful. If that be so, in view of the above referred provisions and the position that emerges from the said provisions, as summed up by Hon'ble Supreme Court In the case of Pushpa Devi Bhagat (supra), 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 3A of Order XXIII CPC. Though the prayer Is not to set aside the decree, but to declare the decree is void, illegal and not binding, is in effect, to set aside the decree only, on the ground that it Is not lawful. Hence, the present suit is not maintainable. Consequently, Trial Court has erred in entertaining the suit and in passing the decree. First Appellate Court has not considered the point of maintainability and bar of suit and has committed illegality in dismissing the appeal of defendant. In the circumstances of the case, the remedy available to plaintiff is to approach the Court which recorded the compromise and made the decree In terms thereof In O.S. No. 584/89 and establish that the same was not lawful and that there was no compromise, in which event, the Court which recorded the compromise should consider and decide the question as to whether there was a lawful compromise or not.
15. Since no independent or separate suit can be filed for setting aside a compromise decree, what is the course of action which an aggrieved person like the plaintiff has to undertake. In my opinion, the answer can straightaway be found from the decision of the Hon'ble Supreme Court BANWARI LAL (supra) wherein, it has been held as follows:
14. The application for exercise of power under proviso to Rule 3 of Order 23 can be labelled - under Section 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3. It has been held by different High Courts that even after a compromise has been recorded, the Court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise. Reference in this connection may be made to the cases Smt. Tara Bai v. V.S. Krishnaswamy Rao AIR 1985 Kar 270; S.G. Thimmappa v. T. Anantha AIR 1986 Kar 1, Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh : AIR1958Pat618 ; Mangal Mahton v. Behari Mahton : AIR1964Pat483 and Sri. Iswar Gopal Jew v. Bhagwandas Shaw : AIR1982Cal12 , where it has been held that application under Section 151 of the Code is maintainable. The Court before which It Is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that Court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself Is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful.
(emphasis supplied by me)
16. For the foregoing discussions and reasons, I pass the following order:
(i) Appeal is allowed. Judgment and Decree dated 03.02.2003 passed by Addl. Civil Judge (Sr. Dn.), Kolar, in R.A. No. 1/97, is hereby set aside.
(ii) Judgment and Decree dated 16.11.1996 in O.S. No. 523/1990 passed by the Principal Munsiff, Kolar, is hereby set aside. O.S. No. 523/1990 shall stand dismissed due to bar under Rule 3A of Order XXIII CPC.
17. However, it is made clear that, dismissal of O.S. No. 523/1990 will not come in the way of respondent/plaintiff from taking necessary steps in O.S. No. 584/1989 to seek the setting aside of the decree passed therein on the basis of the alleged compromise petition. If any petition/application is filed by defendant in O.S. No. 584/1989 in the Court which disposed of the said suit, such petition/application shall be considered and disposed of on its merit and in accordance with law, on top priority basis at any event within 6 months from the date of filing a petition/application, considering the fact that, the parties have been litigating in the matter for the past nearly two decades.
In the circumstances, there shall be no order as to costs.