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High Court Of Calcutta
PRABIR KUMAR MAJUMDAR
GOSTO BEHARI PRAMANIK - Appellant
Versus
MALATI SEN - Respondent
C. R. 505 Of 1980
Decided On : 12/20/1984
CIVIL PROCEDURE CODE - JURISDICTION - PECUNIARY JURISDICTION - WAIVER - EFFECT OF COMPROMISE DECREE - CONSENT OBTAINED BY FRAUD OR COERCION - SETTING ASIDE COMPROMISE DECREE.
Fact of the Case:
The petitioner filed a suit for ejectment against the defendants including the plaintiff. The defendants also filed a suit for reliefs under the Bengal Money Lenders Act. The parties compromised both the suits by a single petition. The plaintiff filed a suit challenging the compromise decree and also filed an application for temporary injunction restraining the petitioner from executing the compromise decree. The Munsif rejected the application for injunction holding that the plaintiff was a party to the compromise decree. The Additional District Judge allowed the appeal and the application for injunction holding that the compromise decree was without jurisdiction as the Munsif had no pecuniary jurisdiction.
Finding of the Court:
The High Court held that the learned appellate Court allowed the appeal and the application on an entire misconception of law. The learned Judge was entirely wrong in holding that the opposite party 1 had made out a strong prima facie case that the compromise decree was without jurisdiction as the learned Munsif had no pecuniary jurisdiction as aforesaid. In my opinion, in the case like this the only consideration for the Court is whether plaintiff was a party to the compromise decree or her consent, if any, was obtained under coercion. As found by the learned Munsif, in my view rightly, the plaintiff failed to establish her plea of ignorance of the compromise decree, and the defendants 2 and 3 set up the plaintiff to avoid the execution of the decree passed in the said title suit.
Issues: 1. Whether the compromise decree was without jurisdiction as the Munsif had no pecuniary jurisdiction? 2. Whether the plaintiff was a party to the compromise decree or her consent, if any, was obtained under coercion?
Ratio Decidendi: 1. Pecuniary jurisdiction is an irregularity and does not make a decree a nullity. A decree based on compromise between the parties to a suit is not void or a nullity merely because it involves an amount which exceeds the pecuniary limits of jurisdiction of the Court that passed it. 2. The consent of compromise decree can only be set aside in separate suit on proceedings on the ground that the consent was obtained by fraud or coercion, and such consent or compromise decree resulted in serious and substantial injustice.
Final Decision: The High Court set aside the order of the Additional District Judge and restored the order of the Munsif rejecting the application for injunction.
( 1 ) THIS revisional application is at the instance of the defendant-petitioner and is directed against the order dated 9th November, 1979 passed by the learned Additional District Judge, 3rd Court, Alipore in Misc. Appeal No. 461 of 1979 reversing the Order No. 9 dated 9th July, 1979 passed by the learned Munsif, 6th Court, Alipore in Title Suit No. 283 of 1979.
( 2 ) THE opposite party No. 1 being the plaintiff instituted a suit being Title Suit No. 283 of 1979 in the Court of Munsif, 6th Court at Alipore, against the petitioner as also opposite parties Nos. 2 to 4 for a declaration and for injunction, contending, inter alia, that the compromise decree in Title Suit No. 40 of 1971 and the proceedings in Title Execution Case No. 75 of 1974 being fraudulent and fictitious were neither binding nor enforceable against the plaintiff, and the defendant No. 1, the petitioner herein, be restrained by permanent injunction from executing the said decree.
( 3 ) THE opposite party No. 1 also filed an application in the said suit for temporary injunction against the petitioner restraining the petitioner from executing the said compromise decree in the said Title Suit No. 40 of 1971. The case of the opposite party No. 1 in the said application was that the petitioner in collusion with the opposite party 2 and others entered into a compromise and as such the same was not binding on the opposite party 1. The opposite party 1 had further contended that she did not appear in the said Title Suit No. 40 of 1971 and had no knowledge of the said Title Execution Case No. 75 of 1974.
( 4 ) IT appears that the defendant 1 (the petitioner herein) instituted a Title Suit No. 40 of 1971 against the defendants 2 to 4 and the plaintiff for ejectment from the suit property alleging that he had purchased the same from their predecessor. The defendants 2 and 4 and the plaintiff also instituted a Title Suit No. 230 of 1972 praying for reliefs under the Bengal Money Lenders Act alleging that their predecessor mortgaged the suit property to the defendant 1 (the petitioner herein) on taking a loan of Rs. 3000/- and he executed a kobala in favour of defendant 1 as a security for the loan for Rs. 6,000/-, that is, Rs. 3,000/-as principal, and Rs. 3,000/- as interest. The parties compromised both the suits by a single petition. In terms of the said compromise petition the defendant 1 (the petitioner herein) would get a decree for ejectment, but the same would not be executable if the defendant 2 paid Rs. 6,200/- to him by instalments. It also appears that defendant 2 did not pay the said amount of Rs. 6,200/- to the defendant 1, and therefore the defendant 1 put the decree for execution in Title Execution Case No. 75 of 1974.
( 5 ) THE learned Munsif, 6th Court, Alipore by his Order No. 9 dated 9th July, 1979 rejected the plaintiff's application for injunction holding, inter alia, that it was evident from case record of the Title Suit No. 40 of 1971 that the plaintiff was the defendant 5 in the said suit and the summons was duly served on her which she had received on signing the acknowledgment receipt on 11-11-1971. Thereafter, she entered appearance by filing vokalatnama. The said title suit was decreed on compromise on 26-6-1974 and the compromise petition formed part of the decree. The lawyer of the plaintiff also signed the compromise petition and as such the plaintiff was a party to the said compromise decree. The learned Munsif further held that she was made pro forma defendant 4 in the Misc. Case No. 127 of 1976 arising out of Title Execution Case No. 75 of 1974, and she duly received notice of the said application.
( 6 ) THE learned Munsif was of the view that the defendants 2 and 3 having failed to resist the execution of the decree set up the plaintiff to avoid the execution of the said decree. The learned Munsif rejected the said application for injunction filed by the Opposite Party 1 and directed her to deposit Rs. 6,2
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