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BIBHAS RANJAN DE
Somesh Ch. Bhattacharyya – Appellant
Versus
Prosun Kumar Bhattacharyya – Respondent
JUDGMENT :
Bibhas Ranjan De, J.
Case of the Plaintiff/petitioner:-
1. The instant execution case arose out of a partition suit being CS no. 3 of 2005 in respect of Premise no. 88/2A, Rafi Ahmed Kidwai Road, Kolkata-700013 along with other proprieties, which was compromised between the parties and one preliminary decree was passed on 8th March , 2005 by consent of the parties to the suit. Thereafter, parties to the suit arrived at a settlement and Terms of Settlement was signed by the parties and their respective Ld. Advocates filed before the Hon’ble Court on 19th December, 2007 when final Decree was passed by this Hon’ble Court in terms of settlement. Thereafter, on 24th September, 2013 Hon’ble Court allowed the application filed by the petitioner seeking certified copy of the decree dated 19th December, 2007 and that was allowed by the Court directing the department to issue certified copy within a week. Plaintiff/petitioner in terms of that decree, plaintiff became the sole and absolute owner of Lot ‘A’ of premises no. 88/2A, Rafi Ahmed Kidwai Road, Kolkata-700013. Lot ‘B’ and ‘C’ of the said premises were allotted to the original defendant no. 1 & 2(since deceased).
2. The Original
The executing court must determine questions arising between parties to the decree without modifying it, and procedural irregularities should not defeat substantive rights.
A consent decree can be challenged for fraud but if the person alleging fraud has benefited, they may be estopped from raising objections in execution proceedings.
An ex parte decree that is cryptic and non-compliant with procedural requirements cannot be executed; necessary amendments to parties and relief sought must be pursued to validate execution.
A consent decree is valid and binding on the parties only if the consent is given voluntarily and with full knowledge of the implications of the decree.
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