A person aggrieved by a compromise decree can challenge it by approaching the same court that passed the decree with an application, or by filing an appeal under Order 43 Rule 1A if the compromise was recorded after an enquiry and adjudication of a dispute.

Harish Tandon, J.

The point, which initially looks simpliciter becomes complex because of the rival stand taken by the counsels relying the judgments of the different High Courts and the Supreme Court. The point so agitated becomes complex and needs deliberation in the instant Revisional Application upon scanning the different judgments relied upon by the respective counsels.

2. The legal point which germane in this Revisional Application is what would be the remedy of a person against the compromise decree passed by the Trial Court. The complexity is seen from the different provisions contained in the Civil Procedure Code. Section 96(3) of the Code of Civil Procedure expressly bars the remedy by way of an appeal against the decree based on consent of parties.

3. Order 23, Rule 3A of the Code does not allow any challenge to a compromise decree by way of separate suit. On the other hand, Order 43, Rule 1A of the Code provides the remedy by way of an appeal against the decree that the Order recording the compromise or refusing to record the compromise is not lawful.

4. One view is that when the legislature expressly bars the institution of a suit and takes away the right of an appeal the proper remedy is to approach the same Court under Order 23, Rule 3 or Section 151 of the Code. The other view, which could be seen is that though Section 96(3) of the Code took away the remedy by way of an appeal against the decree passed on consent, still, the party aggrieved can explore its remedy under Order 43, Rule 1A of the Code before the Appellate Court. The third view which does not get support in majority of the decision is that the challenge to a compromise decree or a consent decree on the ground of fraud, coercion, misrepresentation which renders the compromise decree void and/or voidable can be assailed in a separate suit despite the embargo under Order 23, Rule 3A of the Code.

5. There is unanimity in almost all the decisions sighted at the bar that a person cannot be rendered without remedy against the compromise or a consent decree though they defer from such remedy and interpreted the aforesaid provisions either conferring a right to approach the same Court who recorded and/or passed the compromise or consent decree or to approach the Appellate Court by preferring an appeal. The expression used under Section 96(3) of the Code is “consent of parties” and does not incorporate the expression “compromise decree”. Order 43, Rule 1A of the Code did not use the expression appearing in Section 96(3) of the Code but provides a remedy of an appeal against the recording or non-recording of compromise. It would, however, be seen that there was an express provision that is Order 43, Rule 1 (m) of the Code bestowing the right of an appeal against the compromise decree but was later on deleted by an amendment having brought in the year of 1976. It is a trite law that a person cannot be without remedy and therefore, the point assumed significance on the question what is a proper remedy for such aggrieved person? The consent coming out of free volition is an act of estoppel and brings finality to the litigation. Every litigation attains finality, is a fundamental rule as the party, cannot remain in uncertainty. It would not be healthy in a judicial system to keep the litigation open for all time to come in order to keep the parties in uncertainties. Certainty is a virtue and every litigation should reach its finality.

6. There is a freedom of contract as the parties can compromise their dispute at any point of time during the pendency of the proceeding. The compromise is nothing but an agreement entered into by the parties and gets its legal sanction from the Court in the form of a decree. The role of Court is not mere to give a seal to the mandate of the parties but explanation appended to Order 23, Rule 3 of the Code requires the Court to scrutinise whether such compromise is lawful or not. The Court may in an attending circumstances refu