A Court has the power to vary a consent order under certain circumstances.

The Court : This is an application by the hirers of a vehicle for setting aside the alleged sale of a vehicle by a Receiver and for recalling or modification of an order dated 2nd March, 1992. The vehicle's Registration Number is BR-IB/7199. M/s. Premier Investors entered into a hire purchase agreement with the hirers in respect of the vehicle on 6th September, 1990. As is usual, the possession of the vehicle was made over by Premier Investors (hereinafter referred to as the firm) to the hirers upon down payment of a certain sum. The balance amount due was payable in instalments. There is no dispute that the hirers committed default after making payment of some of the instalments. The hire purchase agreement provided for appointment of a sole Arbitrator. According to the hirers the sole Arbitrator was appointed without the consent of the hirers. An application under s. 41 of the Arbitration Act, 1940 was made by the firm and an ex parte order was obtained appointing an Advocate as a Receiver. The Receiver seized the vehicle and kept it in the Chandpura Police Station, Dist. Vaishali in the State of Bihar. A settlement was arrived at between the parties on 25th February, 1992. The terms of the settlement were put in and an order was passed thereon by consent of the parties on 2nd March, 1992. It is this order that is sought to be recalled or modified.

2. Under the order dated 2nd March, 1992 the hirer was to pay an agreed amount in instalments. The Advocate Receiver was discharged and one Mr. Devi Prasad Ganguly was appointed Receiver and possession of the vehicle was made over to the hirers.

3. The hirers paid certain instalments but admit that default was committed in making payment Rs. 1, 16, 990/- which remained payable to the firm. According to the hirers a further payment of Rs. 38,000/- had also been made (Rs. 30,000/- by Demand Draft and Rs. 8,000/- in cash) at the time of signing the terms of settlement.

4. On 23rd March, 1994, the vehicle was seized by the agent of the Receiver in Bihar where the hirers were plying the vehicle and deposited with the Chandpur op. The hirers came to Calcutta from Bihar and filed an application for modification of the order dated 2nd March, 1992 by extending the time fixed to make payment of the arrear instalments. The application (hereinafter referred to as the first application) was moved on 25th April, 1994. On 3rd June, 1994 the firm appeared and obtained directions for filing of affidavits. In its affidavit in opposition the firm claimed that the vehicle had been sold on 30th May, 1994 by the Receiver to one Sardar Lakbir Singh, son of Sardar Darsan Singh of 130/1, B.T.Road, Calcutta 700035. According to the hirers no sale was in fact transacted and the fact of sale had been concocted by the firm to deprive the hirers of any relief they might have obtained from this Court by virtue of the first application.

5. The first application initially came up for hearing before A.N. Ray, J. who released this matter from his list. The matter was thereafter assigned to this Court. The application was dismissed as infructuous in view of the submission made by the firm that the vehicle had been sold. Liberty was, however, given to the hirers to move an application for setting aside the sale. This application has been filed pursuant to such leave on 6th September, 1994.

6. On 7th September, 1994 an interim order was passed restraining the firm and the Receiver from taking any step or further steps towards the sale of the vehicle. Directions were given for filing of affidavits and the matter was adjourned till 21st September, 1994. On 24th November, 1994 an order of status-quo was passed with regard to the ownership and possession of the vehicle as on that date. The hirers were directed to serve a copy of the application on Sri Lakbir Singh, the alleged purchaser by 28th November, 1994 and the matter was directed to appear in the list on 30th November, 1994 for hearing.

7. It is the hirer's case