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2011 (2) GCD 1472 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice J.C. Upadhyaya
Ramratanbhai Badriprasad Agrawal & Ors.
Versus
Kankuben WD/o Parshottamdas Jordas & Ors.
Civil Application - For Orders No. 3892 of 20111—Decided on 05/05/2011
Civil Procedure Code, 1908 (Central Act 5 of 1908) — Sections 96, 96(3), 96(4) — Order 23 Rules 3, 3A, Order 43 Rules 1-A and 1-A(2) — Appeal — Decree based on compromise — In face of objection raised — Maintainability — Finding of — Section 96(3) of the Code says no appeal shall lie from a decree passed by Court with consent of the parties — But the Court observed that provision under Section 96(3) would not bar appeal when there is contest on the question as to whether there was a valid compromise or not and a decree accepting the compromise has been passed and consequently appeal under Section 96(1) of the Code would be maintainable — In this view of the matter Court held that keeping in view the facts and circumstances of the case and more particularly in view of Objections raised before the trial Court under Order 23 Rule 3 of the Code in passing the decree would be maintainable under Section 96(1) of the Code — The preliminary objection in this regard raised on behalf of applicant can not be sustained hence rejected — In this view of the matter interim relief granted by Court can not also be vacated.
Held :
In our view, the aforesaid observations and the decision of the Apex Court in case of Kishun @ Ram Kishun vs. Bihari, AIR 2005 SC 3799 makes it clear that when there is contest on the question as to whether there was a valid compromise or not and a decree by accepting the compromise has been passed upon the decision of any controversy raised, it cannot be said to be a decree passed with the consent of the parties and, therefore, the bar under Section 96(3) of the CPC could have no application and consequently the appeal under Section 96(1) of CPC would be maintainable. [Para 10]
The aforesaid leads us to hold that, keeping in view the facts and circumstances of the case and more particularly in view of the objections raised before the trial Court under Order 23 Rule 3 of CPC in passing the decree based on the agreement or compromise, the present appeal under Section 96(1) would be maintainable and the preliminary objection raised on behalf of the applicant cannot be sustained, hence, rejected. [Para 15]
Law Laid Down :
When there is a contest on the question as to whether there is a valid compromise or not and a decree is passed it can not be said to be a decree passed with consent of parties hence appeal under Section 96(1) of the Code would be maintainable.
Case Law Analysis :
Banwarilal vs. Chando Devi & Anr., (1993)1 SCC 581 [Para 8];; Kishun @ Ram Kishun vs. Bihari, AIR 2005 SC 3799 [Para 9].—Relied on
Pushpadevi Bhagat vs. Rajinder Singh & Ors., AIR 2006 SC 2628 [Para 11].—Distinguished
Jayant Patel, J.—The present application has been preferred for vacating of the interim relief, on the ground of non-maintainability of the appeal being FA No. 2733 of 2009 under Section 96 of the Civil Procedure Code (‘CPC’, for short).
2. We have heard Mr. SN Shelat, ld. Sr. Counsel with Mr. Vasavada for the applicants and Mr. Mihir Joshi, ld. Sr. Counsel with Mr. Shastri for opponents No. 1 to 4 (original appellants), who are the main contesting party since they are original appellants.
3. In order to consider the question of maintainability, the relevant facts are that on 18.3.1993 the applicants herein – original plaintiffs instituted the suit for specific performance of Contract before the Civil Court being Special Civil Suit No. 12/1983 (new number being 4/2002). In the said suit, two separate written compromise were submitted by certain parties to the proceedings being Exhs.600 and 635. First compromise Exh.600 was between plaintiffs on one side and defendants No. 1/1 to 1/3 and defendant No. 2 and defendants No. 5 to 7 on the other side. It appears that, thereafter, when the first compromise, Exh.600 was tendered, the Court was satisfied that the parties concerned had signed the compromise and the admission of the compromise was also verified by the Court and as per the trial Court, it was required to pass the decree as per the terms of the compromise qua the parties who had agreed for compromise, but as there was no compromise of defendants No. 8 to 15 on record, the matter remained pending. Thereafter, the remaining defendants No. 8 to 15 submitted written objections to the compromise and, subsequently, another compromise, Exh.635, was produced and admitted by defendants No. 8 to 15. The plaintiffs thereafter filed reply and resisted the decree passed on the compromise, Exhs.600 and 635. The matter was ultimately heard by the learned Judge on the aspects as to whether the decree should be passed in terms of the compromise, Exhs.600 and 635 or not. The trial Court also considered the provisions of Order 23 Rule 3 of CPC, including the objections raised to the passing of the decree based on the compromise and, ultimately, found that the decree deserves to be passed as per the compromise, Exhs.600 and 635, and accordingly, passed the decree.
4. It appears that initially the original appellants preferred appeal from order being No. 278 of 2007 against the decree passed by the learned civil Judge in Sp. Civil Suit No. 4 of 2002. The question of maintainability of the appeal from order was examined by the learned single Judge of this Court and, ultimately, vide judgment dated 27.8.2008, the learned single Judge found that the appeal from order is not maintainable and the same was dismissed with a liberty to the appellants to challenge the same by way of substantive appeal under Section 96 of the CPC. It appears that thereafter the present appeal being FA No. 2733 of 2009 has been preferred by the original appellants. This Court admitted the first appeal on 4.8.2009 and the application for interim injunction was also decided on the very same day by this Court being CA No. 7364 of 2009 in FA No. 2733 of 2009 and this Court granted status-quo as to the possession and use of the suit land and also further directed that no third party interest in any manner whatsoever shall be created over the land in question.
5. It appears that the applicant herein carried the matter before the Apex Court whereby the order of the learned single Judge in the appeal from order as well as interim relief granted in the civil application in the present appeal were challenged. The Apex Court thereafter vide order dated 3.3.2011 observed for the decision by the High Court on the issue relating to maintainability of the appeal filed under Section 96 of the CPC and also observed that upon such issue of maintainability being decided by the High Court, the High Court shall be free to decide the question of interim relief by the parties. Under the
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