Badar Durrez Ahmed, J.

1. This order shall dispose of four applications. is No. 1868/2007 (for stay) and is No. 1869/2007 (for setting aside the compromise decree dated 25.08.2006) have been filed in CS (OS) 2885/1989 on behalf of the defendant No. 2 (Suharsh Mohan Vadhera) [hereinafter referred to as S.M. Vadhera]. The said Mr. S.M. Vadhera is also the plaintiff in CS(OS) 449/2001. In that suit also, similar applications being is 1866/2007 (for stay) and is No. 1867/2007 (for setting aside the compromise decree) have been filed. The compromise decree was passed in both the suits.

2. The learned Counsel appearing on behalf of Mr. S.M. Vadhera, the applicant in these applications stated that a fraud was committed upon him by the other parties inasmuch as the terms of settlement indicated that the plaintiff in CS(OS) 2885/1989 would hand over vacant and peaceful possession of the property in favor of the said Mr. S.M. Vadhera, whereas the said plaintiffs and other defendants were always aware that vacant possession of the ground floor of the property bearing No. 5A/6, Ansari Road, Darya Ganj, New Delhi (hereinafter referred to as the Darya Ganj Property) could not be obtained inasmuch as it was occupied by a tenant. Consequently, as stated in para 12 of is No. 1869/2007, it is alleged that the other parties made a promise without any intention of performing it and this constituted fraud. It is, thereforee, alleged that the consent of the applicant (Mr. S.M. Vadhera) to the agreement / compromise, which culminated in the decree of 25.08.2006, was obtained by fraud and is, thereforee, voidable at the option of the applicant (S.M. Vadhera), which option he wants to exercise.

3. The learned Counsel for the applicant submitted that Order 23 Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) requires that a compromise of a suit is to be based on a lawful agreement. He then referred to the proviso to the said Rule 3 which stipulates that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question. Referring to the Explanationn appended to the said Rule 3, the learned Counsel submitted that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of this rule. He, thereforee, submitted that an agreement or compromise which could be regarded as void or voidable under the Indian Contract Act, 1872 would not be a lawful agreement and a compromise based on such an agreement which was not lawful could be challenged.

4. Referring to Rule 3A of Order 23 CPC, the learned Counsel submitted that no suit could be filed to set aside a decree on the ground that the compromise on which the decree is based is not lawful. He then referred to Section 96(3) CPC to indicate that no appeal could be filed in respect of a decree passed by the court with the consent of the parties. He referred to these provisions to indicate that neither a suit could be filed nor an appeal in respect of the compromise decree dated 25.08.2006 and the only remedy that the applicant (Mr. S.M. Vadhera) had was to file an application before this Court invoking the proviso to Rule 3 of Order 23 CPC. The learned Counsel then referred to the decision of the Supreme Court in the case of Banwari Lal v. Smt Chando Devi (through L.Rs.) and Anr. : AIR 1993 SC 1139 . In paragraph 7 of the said decision, the Supreme Court observed as under:

7. By adding the proviso along with an Explanationn the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The Explanationn made it clear that an agreement or a compromise which is void or voi