2007 Supreme(Bom) 1543

IN THE HIGH COURT OF BOMBAY
SWATANTER KUMAR,C.J. , & DR D.Y. CHANDRACHUD, J.
Mr Sunil Mehra Appellant.
versus
Mr Rajinder Singh Gulati -Respondent
Appeal No. 414 of 2007 in Notice of Motion No.301 of 2006
In Sum Suit No.5279 of 1998
Decided on 26.10.2007

Headnote:Civil Procedure Code, 1908 - Order XII, Rule 6 - Order XXIII, Rule 3 - Suit for recovery of amount - Decree by consent - Decree on admission - Power of Court to pass decree on admission not depends upon consent of parties - Consent/agreement in writing between parties is a condition precedent to invocation of jurisdiction of Court under Order XXIII, Rule 3 of Code - Agreement between parties neither be void nor voidable under Contract Act - It to be a lawful agreement - No consent of parties required by Court to pass a decree. - The consequence of default as provided in the agreement was that the respondent would be entitled to secure the entire decretal amount with interest which otherwise could be satisfied by just making the payment of Rs. 12 lakhs as per the agreed terms. The argument advanced on behalf of the appellant that this is a decree on admission as contemplated under Order XII, Rule 6 of the CPC is based on misconception of law. Under this provision, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for any party or of its own motion and without waiting for the determination of any other question between the parties, give judgment, having regard to the admission of a fact either in pleading or otherwise. This is a power vested in the Court and does not depend upon the consent of the parties. In the event, there is an admission of a fact, like of the amount due, on the pleadings or otherwise, on any document, etc. on the file or the Court, the Court can pass a decree. The foundation of such a decree is admission of a party and not consent of the parties. The Court would have to pronounce upon a judgment, whether a fact is admitted or not and, if admitted, to what extent and on what scope is the controversy, while passing a decree upon admission. None of these ingredients are required to be satisfied when a decree is passed by the Court on the joint request of the parties where the parties require a consent decree to be passed in terms of Order XXIII, Rule 3 of the CPC. The parties are required to submit in writing an agreement or the terms and conditions of compromise by which they settle whole or any part of the suit claim and such an agreement or compromise should be lawful and the Court has to record its satisfaction in regard to those ingredients. Consent/agreement in writing between the parties is a conditions precedent to invocation of the jurisdiction of the Court under Order XXIII, Rule 3 of the CPC. The agreement between the parties should neither be void nor voidable under the Indian Contract Act and it has to be a lawful agreement. It is the agreement between the parties which results in passing of a decree under Order XXIII which in contradistinction thereto under Order XII, Rule 6, no consent of parties would be required by the Court to pass a decree. This distinction is determinative in this regard and different consequences will follow on the basis of a decree by consent and a decree on admission.

       Civil Procedure Code, 1908 - Order XII, Rule 6 - Order XXIII, Rule 3, Section 148 - Consent decree - Power of Court - Court can alter terms and conditions of agreement between parties only by consent of parties - Not on unilateral plea taken by a party. - It is amply clear from the aforenoticed facts that the appellant had taken an advantage/ concession in terms of the compromise decree which was passed by the Court in furtherance to the agreement between the parties dated 8th December, 2004. Admittedly, the appellant has committed default and he is liable to face the consequences of the default by which the entire decretal amount was become due and payable giving right to the respondent to execute the decree as such. The Court has rightly rejected the plea of the appellant for grant of extension and consequent acceptance of installments despite default. The Court could only alter the terms and conditions agreed between the parties by consent of the parties and not on a unilater al plea taken by the appellant. Merely because the agreed terms were titled as Minutes of decree on admission would not change the substance of the document.