The validity of a consent decree depends on the validity of the agreement or compromise on which it is made. The remedy to avoid a consent decree is available only to a party to the decree and not to third parties.

JUDGMENT

1. Heard learned Counsel for the parties. The interim application seeks to set aside consent terms dated 26 October 2020 filed in the present suit. The suit was between the Plaintiff, a developer, and Defendant Nos. 1 and 2, who, at the relevant time, were executors of the last will and testament of Sir Mohd. Yusuf Khot, who was the owner/lessee in respect of various portions of the suit property. The suit sought a decree of specific performance of an agreement for sale dated 16 August 2005, read with two powers of attorney dated 6 September 2005 and 15 November 2005. The agreement for sale proposed transfer of lands described in the plaint to the Plaintiff, which lands formed part of the estate of Sir Mohd. Yusuf Khot, by the executors. In the alternative to specific performance, the Plaintiff sought a money decree in the sum of over Rs.100 crores, being damages in lieu of specific performance. The present compromise was arrived at after impleading Defendant Nos. 3, 4, 5 and 6 as newly added defendants to the suit. The compromise decree authorises development of the suit property inter alia in performance of the agreement for sale.

2. In these facts, the present interim application has been taken out by the Applicant, who claims to be a legatee under the last will and testament of Sir Mohd. Yusuf Khot. It is the Applicant's case that original Defendant Nos. 1 and 2 to the present suit did not have the requisite authority to deal with the suit property.

The Applicant submits that the dealing as between Defendant Nos. 1 and 2 on the one hand and the Plaintiff and the other Defendants on the other, which is reflected in the compromise decree passed in the suit, is against the interest of the Applicant and cannot bind her or the estate of the deceased. The Applicant, in fact, has filed her own administration suit in respect of the estate of Sir Mohd. Yusuf Khot. In her administration suit, she has also taken out an interim application (Interim Application No.26 of 2021) seeking amendment of the plaint inter alia by introducing various main and interlocutory prayers for declaring the compromise decree dated 26 October 2020 as not binding and as not affecting the rights of the Plaintiff and for declaring that no right could be created under the compromise decree, which would affect the Applicant/Plaintiff's right to have the suit property administered in accordance with law and for restraining the parties to the compromise decree from exercising any right vis-a-vis the suit property.

3. Mr. Kamat, learned Counsel appearing for the Applicant, relies on the case of Triloki Nath Singh v. Anirudh Singh1 decided by the Supreme Court. Relying on the authority of this case, learned Counsel submits that the consent decree passed in a suit operates as an estoppel and is valid and binding unless set aside by the court which passed it under an application under the proviso to Order 23 Rule 3 of CPC; no suit could be filed to set aside such decree on the ground that the compromise was not lawful, having regard to the bar contained in Rule 3A of Order 23. Learned Counsel submits that accordingly the present remedy to avoid the consent decree is clearly available to the Applicant and which, learned Counsel submits, is the only appropriate remedy for the Applicant to adopt having regard to Rule 3A of Order 23.

4. The remedy under the proviso of Order 23 Rule 3 of the Code of Civil Procedure, which is referred to in Triloki Nath Singh, is available essentially to a party to a consent decree to avoid such consent decree. The rationale of this provision is that the consent decree is nothing but a contract between the parties with the seal of the court superimposed on it. The validity of the decree depends wholly on the validity of the agreement or compromise on which it is made. If the party to such agreement or compromise proposes to avoid the same on any ground available to a contracting party for avoiding a contract or on the ground that