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.

JUDGMENT :

Apurba Sinha Ray, J.

1. The instant application under Section 47 of the Code of Civil Procedure, 1908 has been filed by one of the sons of one of the decree-holder alleging that the compromise decree passed by the Hon’ble Court is a nullity since the same was obtained by the parties to the said decree on misrepresentation and also on the basis of suppression of material facts. The brief fact as the petitioner has narrated is as follows:-

i. Three sons of the deceased Ramesh Chandra Bhattacharjee claimed 1/3rd share each in all the properties of their father in the partition suit as per Will dated 15.09.1965 which was duly probated on 16.04.1993. The deceased Ramesh Chandra Bhattacharyya had appointed his three sons as executors and trustees for the management of the two Trusts and the said three sons are also the residuary legatees to 1/3rd equal share of all his properties as set out in paragraph 6 of the Will dated 15.09.1965.

ii. On 08.03.2005 the parties represented before the Court that they had amicably agreed to accept 1/3rd equal share and accordingly Learned Commissioner was appointed to demarcate the properties in metes and bounds.

iii. On 18.12.2007 the report of the Commissioner was filed and the terms of settlement was signed by the parties and their learned advocates-on-record.

iv. On 19.12.2007 the suit was decreed in preliminary form. According to the present petitioner it is evident that the Hon’ble Court did not exercise its mind or undertake the arduous task to verify whether the Terms of Settlement were lawful or not as mandated under order XIII Rule (3) of the Code of Civil Procedure, 1908, because two of the three parties were advocates of the Hon’ble Court and one of whom was the senior advocate of this court.

v. Admittedly, the original parties to the suit filed several applications before the Execution Court, including application under Section 47 of the Code of Civil Procedure, 1908. The said applications were disposed of but the disputes remained unresolved in respect of the property at 88/2A Rafi Ahmed Kidwai Road, Kolkata, the dwelling house of the parties.

vi. The original parties to the partition suit died and their legal heirs were brought on record.

2. The learned counsel Mrs. Mookherjee appearing for the petitioner, Mr. Prasun Bhattacharya has argued that the alleged fraud was not unnoticed by the Hon’ble Suit Court since at that time defendant no. 1 and defendant no. 2 were practicing advocates of high repute and the latter being a designated senior advocate. The Hon’ble Court acted in absolute trust and faith cast upon the parties and decreed the suit on compromise without applying its mind to the mandate under order XIII Rule (3) of the Code i.e. to satisfy itself as regards the lawful before recording a compromise.

3. By the judgment dated 02.03.2023, passed in Execution Case no. 171 of 2014, the parties were directed to, inter alia, execute and register a deed of conveyance, in respect of the south west tenanted portion of the property at 88/2 Rafi Ahmed Kidwai Road, Kolkata. According to the learned counsel, being a practicing chartered accountant, the applicant was surprised at such direction and to the best of his knowledge a family settlement requires to be registered and not the individual apportionment of the properties as per terms. Since 2005, the father of the applicant and upon his demis