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ASHOK B.HINCHIGERI
Shaik Sharaff Uddin – Appellant
Versus
Abdul Karim S/o Sheikh Khalanadar Sab, Since Deceased By LRs – Respondent
What is the maintainability of an appeal challenging a compromise decree in a representative suit when a party not party to the compromise seeks relief? What is the effect of Order XXIII Rule 3A and Rule 3B (as amended) on challenging a compromise decree and the rights of non-parties or strangers to the compromise? What remedies are available to a person not party to a compromise decree to challenge or seek relief against such decree?
Key Points: - (!) (!) Rule 3A bars suits to set aside a decree on the ground that the compromise was not lawful, affecting maintainability of independent challenges. - (!) (!) Rule 3B requires notice to interested persons in representative suits before leave to enter into a compromise; non-compliance allows separate relief suits. - (!) (!) Represented persons may be affected; non-parties may seek relief by separate suit, as consent decree itself is not ordinarily appealable. - (!) Central question: whether a non-party to the compromise decree can maintain an appeal. - (!) (!) In this Karnataka case, non-parties were held to have a maintainable separate suit remedy, not an appeal, to challenge the compromise decree. - (!) Orders under Order 23 Rule 3 may not be appealable; remedies exist in the court that recorded the compromise. - (!) The court analyzes the scope of section 96(3) and the prohibition on appeals from consent decrees, with exceptions for strangers in certain cases. - (!) The court ultimately rejects the appeal on maintainability and preserves liberty to pursue suit remedies. - (!) The appeal concerns a compromise decree in a suit for partition and related properties. - (!) (!) Historical context: amendments to CPC and the shift away from miscellaneous appeals for challenges to compromise orders.
This appeal is directed against the judgment and decree passed by the court of the City Civil Judge, Bangalore in O.S. No. 7136/2009 insofar as it relates to ‘A’ schedule property.
2. The facts of the case in brief are that the appellants claim to have purchased the sites from Sued Makthiar Pasha, the general power of attorney holder of one Smt. Vazira Bi and her children. The said Smt. Vazira bi and her daughter, Razia Bi, it is claimed, got the properties in question by virtue of a registered will, dated 29/5/1981 executed by Sri Shaik Kaladar Sab. The appellants claim to have built the houses on their respective sites. They claim to have been paying the property tax to the local bodies.
3. At the other end of the spectrum, the respondent no.1 filed O.S. No.534/2002 seeking the relief of permanent injunction in respect of the lands standing at Sy.Nos.57/2 and 57/4 of Doddabettahalli village measuring 1 acre 2 guntas and measuring 16 guntas respectively. The suit was dismissed by the Trial Court by its judgment dated 17/1/2008. Thereafter, the respondent no.1 filed O.s.No.7136/2009 for partition and separate possession of the suit schedule properties. The suit culminated
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