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High Court Of Calcutta
Nirmal Chandra Mukherji
SAILENDRA NATH ROY CHOWDHURY - Appellant
Versus
MD.ALIM - Respondent
Civil Revn. 1641 Of 1979
Decided On : 08/30/1982
COMPROMISE DECREE - SETTING ASIDE - SECTION 151 OF THE CODE OF CIVIL PROCEDURE - MAINTAINABILITY - APPEAL - JURISDICTION - MISTAKE - COURT'S INHERENT POWER - TRUSTEES - JOINT ACTION - COMPROMISE - VALIDITY.
Fact of the Case:
A compromise decree was passed in a suit for recovery of possession of premises by a trustee. The decree was set aside by the trial court under Section 151 of the Code of Civil Procedure (CPC) on the ground that the compromise petition was not signed by all the trustees and that the terms of the compromise were uncertain and vague. The trustee challenged the order of the trial court by filing a revision petition in the High Court.
Finding of the Court:
The High Court held that the application under Section 151 of the CPC for setting aside the decree was not maintainable. It observed that the proper remedy for the defendant was to prefer an appeal against the compromise decree. The court further held that the trial court had no jurisdiction to set aside the decree on the ground of mistake, as no mistake was committed by the court in passing the compromise decree. The court also held that the compromise decree was valid and binding on the parties, as it was signed by all the necessary parties and the terms of the compromise were certain and definite.
Issues: 1. Whether an application under Section 151 of the CPC is maintainable to set aside a compromise decree when an appeal is provided under Order 43, Rule 1(a) of the CPC? 2. Whether a court can set aside a compromise decree on the ground of mistake under Section 151 of the CPC? 3. Whether a compromise decree is valid and binding on the parties when it is signed by all the necessary parties and the terms of the compromise are certain and definite?
Ratio Decidendi: 1. An application under Section 151 of the CPC is not maintainable to set aside a compromise decree when an appeal is provided under Order 43, Rule 1(a) of the CPC. The proper remedy for a party aggrieved by a compromise decree is to prefer an appeal. 2. A court cannot set aside a compromise decree on the ground of mistake under Section 151 of the CPC, unless the mistake is such that it goes to the root of the jurisdiction of the court or renders the decree a nullity. 3. A compromise decree is valid and binding on the parties when it is signed by all the necessary parties and the terms of the compromise are certain and definite.
Final Decision: The revision petition was allowed, the order of the trial court setting aside the compromise decree was set aside, and the compromise decree was restored.
( 1 ) THIS Rule arises on an application under Section 115 of the Code and is directed against Order No. 52 dated 15th Feb. , 1979, passed by Shri R. Chatterji, Judge, 4th Bench, City Civil Court at Calcutta in Title Suit No. 842 of 1976. By the said order, the learned Judge allowed an application under Section 151 of the Code filed by the defendant and set aside the compromise decree and further ordered the suit or proceedings to proceed in accordance with law. The facts of the case may briefly be stated as follows :--
( 2 ) THE premises No. 13/1b, Marsden Street, now known as 13/1, Pemantle Street, Calcutta, belonged to the Trust Estate of Dr. Ajita Nath Roy Chowdhury, since deceased, and Dr. Amarendra Nath Roy Choudhury, since deceased and the petitioner was the joint trustee to the said Trust Estate. The opposite party No. 1 was inducted as a licensee in respect of six rooms on the ground floor. As the opposite party No. 1 failed to vacate the premises on revocation of the licence, the petitioner with other trustees instituted Title Suit No. 842 of 1976 in the City Civil Court, Calcutta for recovery of possession. An ex parte decree was passed as the opposite party No. 1 failed to appear in spite of due service of summons. Tbe decree was subsequently put into execution and Title Execution Case No. 55 of 1976 was registered. As the opposite party resisted, the petitioner filed an application under Order 21, Rule 97 of the Code and prayed for police help and it was registered as Miscel-laneous Case No. 876 of 1976. Thereafter, opposite party made an application under Order 9, Rule 13 of the Code which gave rise to Misc. Case No. 1654 of 1976. During the pendency of the said Misc. case, one of the trustee-decree-holder Dr. Ajita Nath Roy Chowdhury died and in his place, Dhireadra Nath Roy Chowdhuty was appointed as joint trustee along with the petitioner. The opposite party filed an application under Order 22, Rule 4a of the Code on May 21, 1977 praying for substitution of the said Dhiren-dra Nath Roy Chowdhury, but no order was passed until Feb. 18, 1978. The opposite party subsequently filed an application under Order 39, Rr. 1 and 2 of the Code in Misc. Case No. 1054 of 1976. Without serving any copy of the said application and without giving any opportunity to the petitioner to oppose the said application, the opposite party moved the application on April 29, 1976 and got an order of temporary injunction against the petitioner. Being aggrieved, the petitioner came in appeal to this Court being F. M. A. No. 515 of 1977. The appeal was admitted and this Court stayed the operation of the order of injunction. At the final hearing, the injunction order was modified by this Court. On 18-2-78 in course of hearing of the Misc. Case arising out of an application under Order 39, Rule 2a of the Code at the instance of the opposite party and on the suggestion of the learned Judge the respective parties and their lawyers agreed to settle all the disputes and to file compromise petition. Three joint petitions of compromise in Misc. Case No. 1086a of 1977, Misc. Case No. 1054 of 1976 and Title Suit No. 842 of 1963 were filed on Feb. 18, 1978 and the Court by Order No. 45 allowed the said joint petitions of compromise on the finding that they were valid and legal and all the cases including the suit were disposed of. By the same order, the application of the opposite party dated May 21, 1977 for substitution of the name of Dhirendra Nath Roy Chowdhury in place of Dr. Amarendra Nath Roy Chowdhury was allowed. It is stated that the joint compromise petitions were signed by the opposite party No. 1 alone. The question of signing the compromise petitions by the added trustee Dfairendra Nath Roy Chowdhury could not and did not arise at all as the order of substitution was made after filing of the said compromise petitions. The opposite parties without preferring any appeal as provided in Order 43, Rule 1a of the C
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