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IN THE HIGH COURT AT CALCUTTA
KRISHNA RAO, J.
Rabindra Kumar Mehra – Appellant
Versus
Tara Chand Mehra & Ors. – Respondents
IA No: GA 22 of 2019 (Old No: GA 2775 of 2019), In CS 90 of 2012
Decided on : 14-07-2023
PARTITION SUIT - PRELIMINARY DECREE - CONSENT - RECALL - ESTOPPEL - MERITS - COUNTERCLAIM - CODE OF CIVIL PROCEDURE, 1908 - ORDER VIII, RULE 6A AND 6F - ORDER XXIII, RULE 3 - ORDER XLVII - SECTION 11.
Fact of the Case:
Plaintiff filed a suit for partition of property by metes and bounds and in the alternative, by sale and division of the sale proceeds. Defendant No.3 contested the suit, claiming an amicable partition effected 20 years back. The trial court passed a preliminary decree by consent on July 8, 2019, declaring the shares of the parties as per the plaint. Defendant No.3 filed an appeal against the preliminary decree, which was dismissed as not maintainable. Defendant No.3 then filed an application for recalling the preliminary decree, alleging that the consent was recorded inadvertently due to the misunderstanding of the junior advocate who appeared on his behalf.
Finding of the Court:
The court held that the defendant No.3 had not made different statements in the appeal and the present application, and therefore, the principle of estoppel and acquiescence was not applicable. The court also noted that the defendant No.3 had relied on the settlement of 1996 and had filed a counterclaim based on the settlement, but none of the parties had brought to the court's notice the counterclaim or the order passed by the appellate court dated September 26, 2014, which allowed the parties to argue the matter on merit.
Issues: 1. Whether the consent recorded in the preliminary decree was valid and binding on the defendant No.3. 2. Whether the defendant No.3 was estopped from challenging the preliminary decree by taking different grounds in the appeal and the present application. 3. Whether the suit should be disposed of on merit, considering the counterclaim filed by the defendant No.3 and the order of the appellate court dated September 26, 2014.
Ratio Decidendi: 1. The court held that the consent recorded in the preliminary decree was not valid and binding on the defendant No.3 as it was given inadvertently due to the misunderstanding of the junior advocate who appeared on his behalf. 2. The court held that the defendant No.3 was not estopped from challenging the preliminary decree by taking different grounds in the appeal and the present application as he had not made different statements in both courts. 3. The court held that the suit should be disposed of on merit, considering the counterclaim filed by the defendant No.3 and the order of the appellate court dated September 26, 2014, which allowed the parties to argue the matter on merit.
Final Decision: The court recalled the preliminary decree dated July 8, 2019, and directed the parties to argue the matter on merit.
JUDGMENT :
Krishna Rao, J.:
1. By an order dated July 8, 2019, this Court had passed the following order:
To effect the partition in between the co sharers by metes and bounds let a Commissioner of Partition be issued to cause partition of the suit property. The Commissioner of Partition shall complete the partition work within three months.
Mr. Gautam Kumar Ray, Learned Advocate (9073911724) is hereby appointed Commissioner for Partition for the purpose as aforestated.
For the present the Commissioner of Partition will be paid a sum of Rs. 25,000/-which shall be borne by the parties in equal share and be paid within fortnight. However, further remuneration will be considered after the report is filed by the Commissioner of Partition in Court, after the partition is completed. The Commissioner is also permitted to take assistance of any surveyor, if he deems fit, but after obtaining leave of this court.
Parties will be at liberty to pray for final decree after Commissioner of Partition files report.”
2. Being aggrieved with the order dated July 8, 2019, the defendant No. 3 had preferred an appeal before the appellate Court being APO No. 137 of 2019 and the Hon’ble Appellate Court by an order dated 11th November, 2019 had dismissed the appeal filed by the defendant No.3 on the ground of maintainability without going into the merits of the matter.
“This is a suit for partition. All the parties are represented by their respective Counsels. It is agreed by the learned Counsels that the suit may be decreed. Accordingly, the suit be and the same is decreed in preliminary form. It is declared that the plaintiffs and the defendants are entitled to their respective shares indicated in paragraph 19 of the plaint. Such shares are, accordingly, declared. Decree be drawn up expeditiously.”
It is elementary that a Court is the master for recording what transpires before it and once a Court has recorded that the representatives of the parties had submitted to the decree or had agreed to a form of an order, nothing contrary to what is so recorded may be accepted. It is equally rudimentary that when a party submits to a decree or accepts a position and such acceptance is recorded in the order of the relevant Court, no appeal may be filed by such party against the relevant order.
In view of the recording as quoted above, the appeal is not maintainable. If it is the appellants’ understanding or perception that what has been recorded in the order dated July 8, 2019 as quoted above is not an appropriate recording of what transpired before the Court at the time of the hearing, it will be open to the appellants to take out an appropriate application before the court of the first instance. APO No. 137 of 2019 along with GA No. 2005 of 2019 are dismissed as not maintainable without going into the merits of the matter.”
3. After dismissal of the appeal, the defendant No.3 has filed the present application being G.A 22 of 2019 in CS No. 90 of 2012 for recalling of the order dated July 8, 2019 passed in CS No. 90 of 2012 and fixing the case for argument.
4. Mr. Rahul Karmakar, the learned Advocate representing the defendant No.3 submits that the plaintiff has filed the suit praying for preliminary decree and final decree for partition of the Premises No.13, Rabindra Sarani, Kolkata – 700073, by metes and bounds and in the alternative, by sale and division of the sale proceeds in ac
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.
The impugned decree was a consent decree based on a valid compromise inter se siblings, and the appellant was bound by the statement of her counsel. The Court found the impugned decree to be legally ....
A consent decree is binding on all parties, including those who are ex-parte. An appeal must be filed within the limitation period starting from the date of decree, not later.
The court clarified the rights of the parties in the subject property and directed the appointment of a Local Commissioner to effectuate the preliminary decree for partition, in line with the provisi....
A consent decree obtained by fraud must be challenged in the court that issued it; separate suits for challenge are not maintainable.
(1) Client is bound by admissions of fact made by Counsel, especially if so authorised.(2) Suit/Appeal is not maintainable for setting aside a decree based on compromise.
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.
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