ORDER
Dipak Misra, J.
1. In this appeal preferred under Section 96 of the Code of Civil Procedure the defendants-appellants have called in question the defensibility of the judgment and decree passed by learned IInd Additional District Judge, Betul, in Civil Suit No. 3-A/1996.
2. The facts which are essential to be stated are that Civil Suit No. 4-A/1986 was instituted by the defendants appellants (hereinafter referred to as 'the appellants') for declaration of right, title and interest in respect of the land situated at Khasra No. 336 admeasuring 1.197 hectare before the First Additional District Judge, Betul. The Court on the basis of compromise application dated 6-10-1990 as contained in Exh. P-6 filed by the parties passed the judgment and decree dated 30-10-1990 as per Exh. P-5. As per compromise, Exh. P-6, land bearing Khasra No. 955 admeasuring 4.56 acres at Village Tikari was to be transferred in favour of Brajesh Kumar, appellant No. 1 in exchange of land bearing Khasra Nos. 335 and 336 and on the basis of the judgment and the decree, exchange deed dated 7-10-1994 was executed in favour of the appellant No.l.
3. The State of M.P. and its functionaries instituted the present suit contending, inter alia that in the earlier suit it was pleaded by the plaintiffs that Forest Department therein had unauthorisedly removed the trees from Khasra No. 336 belonging to Brajesh Kumar and hence defendants should pay damages to the tune of Rs. 40,000/-. It was also pleaded that he should be declared as the owner of Khasra No. 336. Various documents were produced before the Court for grant of reliefs prayed. It was pleaded by the State of Madhya Pradesh and its functionaries that Narendra Kumar, the defendant No. 3 in the present suit who was defending the Civil Suit No. 4-A/86 was not duly appointed as Officer-in-charge and had no authority to enter into any compromise on behalf of the State Government or for that matter on behalf of the forest department. It was pleaded that such a compromise was violative of provisions of Forest Conservation Act, 1980 and M.P. Land Revenue Code. It was urged that the defendants obtained the decree in a fraudulent manner by concealing the material facts and, therefore, the decree and the judgment passed in Civil Suit No. 4-A/86 is ab initio void and consequentially the execution of the exchange deed is also null and void.
4. Defendant No. 2, Shiv Shankar Shukla remained exparte. Narendra Kumar, defendant No. 3 pleaded that he was not apprised that the land belonging to Khasra No. 955 is the forest land and he signed the compromise deed on being advised by the Government pleader. It is also submitted by him that he acted in a bonafide manner though he did not have the right to give the land of Khasra No. 955 in exchange of any other land.
5. The stand of the defendant No. 1, Brajesh Kumar in the written statement is that the compromise entered into between the plaintiff and the defendants in Civil Suit No. 4-A/86 is lawful and the judgment and the decree passed in the said suit is absolutely proper and in any case the same cannot be unsettled or dislodged in a suit of the nature. It has been put forth that the land given in exchange is not forest land and in fact it belongs to the State Government. The further stand of the said defendant is that the plaintiffs are precluded from disputing the compromise deed dated 30-10-1990 which had already been given effect to. Allegations relating to fraud had been disputed as baseless. As per the pleadings, the State Government has not challenged the aforesaid compromise decree and hence, it is estopped to assail the validity of the judgment and decree in a suit. The defendant is in possession of the disputed land bearing Khasra No. 955. Quite apart from the above, it has also been urged that the suit has not properly valued and the Court has no jurisdiction to decide the lis in question.
6. Learned Trial Judge framed number of issues and on appreciation of material has came to hold that Narendra Kumar who had entered into the compromise had no authority inasmuch as he was not appointed as the Officer-in-charge by the competent department as required under Rule 136 of the Rules framed by the Law Department, Government of M.P.; that Narendra Kumar had no authority to enter into any kind of compromise even if it is accepted that he was appointed to defend the suit for such conferral of power does not clothe him with the authority to enter into such compromise; that the land that has been given on exchange is forest land and hence, the same is covered by the provisions of Section 2 of the Forest Conservation Act, 1980; that the approval from the Central Government has not been taken for giving the disputed land in exchange; that Exh. P-14, the original deed of compromise does not bear the signature of Shri Shankar Shukla and Brajesh Awasthy but their Counsel; that there is no indication that proposal for exchange was duly notified under Sections 4 and 6 of the Indian forest Act, 1927; that on a scrutiny of the Exh. P-12 it would be clear that the plaintiffs therein had concealed the material fact in entering into compromise in C.S. No. 4-A/86; that the argument that the suit is not tenable cannot be accepted as the suit is maintainable under Section 9 of the Civil Procedure Code read with Section 34 of the Specific Relief Act; that provisions of Order 23, Rule 3 would not be attracted as the original judgment and the decree and the compromise arrived at are totally without jurisdiction and thereby null and void and hence, the suit is maintainable under Section 9 of the Civil Procedure Code; and that the suit was properly valued and not barred by limitation.
7. Being of the aforesaid view the learned Trial Judge decreed the suit and set aside the judgment and decree passed in Civil Suit No. 4-A/1986 and thereby other consequential documents.
8. We have heard Mr. Ravish Agrawal, learned Senior Counsel along with Mr. Pranay Verma and Mr. Ajay Ojha for the appellants and Mr. P.N. Dubey, learned Deputy Advocate General for the State.
9. Mr. Agrawal, learned Senior Counsel has raised a singular contention that the suit filed by the State of M.P. and its functionaries is not maintainable in view of the decision rendered in the case of Banwarilal v. Chando Devi and Anr. : AIR1993SC1139 .
10. Mr. P.N. Dubey, learned Deputy Advocate General for the State has supported the judgment passed by the learned Trial Judge.
11. The solitary question that arises for consideration is whether the suit filed for setting aside the compromise decree is maintainable or not. In the case of Banwarilal (supra), it has been held as under:
7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or void able under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said rule. Having introduced the proviso along with the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3-A in respect of institution of a separate suit for setting aside a decree on basis of a compromise saying:
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. *** *** *** *** ***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 Tara Bai (Smt.) v. V.S. Krishnaswami Rao, S.G. Thimmappa v. T. Anantha; Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh; Mangal Mahton v. Behari Mahton and Sri Sri Ishwar Gopal Jew v. Bhagwandas Shaw 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 void able 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. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise on February 27,1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that order.
12. This Court in the case of Raghuvir Singh and Ors. v. Ramdarshan Ramcharan Kirar and Ors. 2002 (1) MPLJ 617, expressed the opinion as under:
There is no procedural hurdle in treating the suit which is legally not maintainable as an application under Section 151, Civil Procedure Code in the earlier suit. The procedure devised by the Court to entertain an application under Section 151, Civil Procedure Code for enquiring whether the compromise was unlawful is a judicial innovation in order to ensure that a party does not suffer because he was the victim of fraud or misrepresentation or the compromise is otherwise unlawful. Even after the decree has been passed on the basis of a compromise after verification by the Court, it is still permissible in a given case to assail the compromise on the ground of its unlawfulness. A separate suit has been barred but by a process of interpretation a procedure has been carved out to challenge an unlawful compromise. It would only be an extension of the said innovative thinking to treat the suit as an application under Section 151, Civil Procedure Code in the earlier suit. Therefore, in substance the Trial Court had not committed any legal error in fixing the case for inquiry whether the compromise was lawful. The Trial Court directed to treat the subsequent civil suit as an application under Section 151 and then proceed further according to law.
13. Recently in the case of Pushpa Devi Bhagat v. Rajinder Singh and Ors. : AIR2006SC2628 , a two Judge Bench of the Apex Court culled out the principles in Paragraph 17 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), Civil Procedure Code.
(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 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 challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8-2001 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 27-8-2001) 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.
14. In view of the aforesaid pronouncement of law we are of the considered opinion the suit instituted by the State of M.P. and its functionary before the learned Trial Judge was not maintainable and, therefore, the judgment and decree passed thereon are vulnerable and are bound to be set aside and accordingly we so do. However, following the law laid down in the case of Raghubir Singh and Ors. (supra), we direct the learned Trial Judge to treat the plaint as an application for setting aside the judgment and decree passed in the earlier suit by way of compromise and proceed as per law.
15. Resultantly the appeal is allowed to the extent indicated above. However, in the facts and circumstances of the case the parties shall bear their respective costs.