The consent decree was not a nullity as the consent terms were signed by the parties' advocates, who had the authority to do so. The defendant No. 1 was precluded from challenging the decree by way of a Chamber Summons due to the applicability of the doctrine of constructive res judicata, as he had failed to raise the nullity plea in response to the show cause notice. An appeal was the only remedy available to the defendant No. 1 in such cases.

Headnote:
CONSENT DECREE - NULLITY - CONSENT TERMS NOT SIGNED BY PARTIES - ADVOCATE'S AUTHORITY - RES JUDICATA - CONSTRUCTIVE RES JUDICATA - EXECUTION PROCEEDINGS - LIMITATION - APPEAL AS SOLE REMEDY - CONSTRUCTION OF ORDER XXIII, RULE 3 OF THE CODE OF CIVIL PROCEDURE, 1908.
Fact of the Case:

The defendant No. 1 challenged the consent decree passed against him on the ground that the consent terms were not signed by the parties in person, rendering the decree a nullity. The plaintiff contended that the consent terms were signed by the parties' advocates, which was sufficient to bind the parties. The defendant No. 1 also argued that the Chamber Summons was barred by constructive res judicata as he failed to raise the nullity plea in response to the show cause notice issued under Order XXI, Rule 22 of the Code of Civil Procedure, 1908, and that an appeal was the only remedy available to him.
Finding of the Court:

The Court held that the consent decree was not a nullity as the consent terms were signed by the parties' advocates, who had the authority to do so. The Court further held that the defendant No. 1 was precluded from challenging the decree by way of a Chamber Summons due to the applicability of the doctrine of constructive res judicata, as he had failed to raise the nullity plea in response to the show cause notice. The Court also held that an appeal was the only remedy available to the defendant No. 1 in such cases.
Issues: 1. Whether the consent decree is a nullity in case the consent terms are not signed by the parties to the suit in person even though the same are signed by their Advocates or Counsel? 2. Whether the Chamber Summons is barred by constructive res judicata by reason of omission on the part of the defendant No. 1 to take the plea of alleged nullity in response to the show cause notice issued by the Court under Order XXI, Rule 22 of the Code of Civil Procedure, 1908 and by reason of the said notice having been made absolute by the Court allowing the decree holder to execute the decree prior to taking out of this Chamber Summons? 3. Whether the filing of an appeal against the impugned consent decree as contemplated under Order XLIII, Rule 1(a)(ii) of the Code of Civil Procedure, 1908 is the only remedy available to defendant No. 1 to challenge the consent decree and the present Chamber Summons is not maintainable in law? 4. Whether the Chamber Summons is barred by law of limitation?
Ratio Decidendi: 1. The Court interpreted Order XXIII, Rule 3 of the Code of Civil Procedure, 1908, as amended, and held that the requirement of the parties signing the consent terms does not necessarily mean that they must sign in person. The Court held that the consent terms can be signed by the parties' recognized agents, including their advocates or counsel, and such signatures would be treated as if signed by the parties themselves. 2. The Court applied the doctrine of constructive res judicata, as explained in Explanation IV appended to section 11 of the Code of Civil Procedure, 1908, and held that the defendant No. 1 was precluded from challenging the consent decree by way of a Chamber Summons due to his failure to raise the nullity plea in response to the show cause notice issued under Order XXI, Rule 22 of the Code of Civil Procedure, 1908. 3. The Court held that an appeal under Order LXIII, Rule 1-A(2) of the Code of Civil Procedure, 1908, was the only remedy available to the defendant No. 1 to challenge the consent decree, and that the Chamber Summons was not maintainable.
Final Decision: The Court dismissed the Chamber Summons filed by the defendant No. 1, holding that the consent decree was not a nullity, that the defendant No. 1 was precluded from challenging the decree due to constructive res judicata, and that an appeal was the only remedy available to him.

JUDGMENT - D.R. DHANUKA, J.:---This Chamber Summons involves certain interesting and important questions of law. The questions involved in this proceedings for considerations of the Court are as under :

(1) Whether the consent decree is a nullity in case the consent terms are not signed by the parties to the suit in person even though the same are signed by their Advocates or Counsel ?

(2) Whether the Chamber Summons is barred by constructive res judicata by reason of omission on the part of the defendant No. 1 to take the plea of alleged nullity in response to the show cause notice issued by the Court under Order XXI, Rule 22 of the Code of Civil Procedure, 1908 and by reason of the said notice having been made absolute by the Court allowing the decree holder to execute the decree prior to taking out of this Chamber Summons?

(3) Whether the filing of an appeal against the impugned consent decree as contemplated under Order XLIII, Rule 1(a)(ii) of the Code of Civil Procedure, 1908 is the only remedy available to defendant No. 1 to challenge the consent decree and the present Chamber Summons is not maintainable in law ?

(4) Whether the Chamber Summons is barred by law of limitation ?

2. It is necessary to refer to facts and circumstances leading to making of this application at least briefly. The relevant facts and circumstances are as under :

(a) Since 1st June 1968, the defendant No. 1 was employed as an officer of the plaintiff bank. The defendant No. 1 was working as a head cashier in the Mohamed Ali Road Branch of the plaintiff back. During this period one Hajibhoy Aziz Sultan was the manager of the said branch of the plaintiff bank. On 8th March 1972 the plaintiff bank filed a Suit No. 309 of 1972 against defendant No. 1 and other defendants claiming a decree in the sum of Rs. 7,12,000/- with interest and costs against defendant No. 1. The plaintiff bank also filed a separate suit later on against the said Hajibhoy Aziz Sultan which was withdrawn. The plaintiff bank launched criminal prosecution against defendant No. 1 and the said Hajibhoy Aziz Sultan under section 409, 467 and 477-A of the Indian Penal Code read with section 34. The defendant No. 1 was tried by the Court of the learned Sessions Judge, Greater Bombay in Sessions Case No. 409 of 1977. The said Hajibhoy Aziz Sultan died during the pendency of the said criminal case. The defendant No. 1 was convicted by the learned Sessions Judge. The defendant No. 1 filed an appeal against the said order of conviction in this Court being Criminal Appeal No. 1164 of 1979. The defendant No. 1 was acquitted in the said appeal much later after the passing of the said consent decree sometime in the year 1988. I am informed that the plaintiff bank has filed a Special Leave Petition in this behalf and the same is pending before the Honourable Supreme Court.

(b) The defendant No. 1 engaged M/s. Jehangir Gulabbhai Bilimoria Daruwalla, Advocates and Solicitors to represents him in this suit. Shri G.J. Desai, a reputed Counsel of this Court practising on the original side was engaged as Counsel to represent defendant No. 1 in the said suit. I have no doubt in mind whatsoever that the defendant No. 1 had authorised their Advocates and Counsel to arrive at the said consent terms. On 8th March 1983 consent terms were signed by Mrs. Sohini Nanavati, Counsel for the plaintiffs, Shri G.J. Desai, Counsel for the defendant No. 1 and Shri N.K. Gamadia, Counsel for the defendants Nos. 2 to 5. The said consent terms were not signed by the parties in person but were signed by their Counsel. By the said consent terms it was provided that the consent decree be passed in favour of the plaintiffs and against the defendant No. 1 for Rs. 7,12,000/- together with interest thereon at the rate of 6 per cent per annum from the date of the suit till payment. By the said consent terms it was further provided that various fixed deposit receipts be endorsed in favour of the plaintiff bank and the amounts receiv

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