PER : MR. J.B. PARDIWALA, J.:

1. This Appeal under Section 96 of the Code of Civil Procedure, 1908 is at the instance of the original defendants, arising from a decree passed by the Civil Court on the strength of a settlement arrived at between the parties outside the Court and is directed against the order passed by the 2nd Additional Senior Civil Judge, Anand, below Exh.105 in Special Civil Suit No.144 of 2009, by which the Civil Court rejected the application Exh.105 filed by the defendants to declare the settlement arrived at by the parties as a nullity alleged to have been obtained by fraud and coercion.

2. The Civil Court, while rejecting the application Exh.105 filed by the original defendants, partly held the settlement deed Exh.35 dated 11th January 2011 as legal & valid and directed the defendants to execute the necessary sale deeds in favour of the plaintiff or in favour of the party which the plaintiff would suggest and the entire cost of such sale deeds was directed to be borne by the plaintiff. The Civil Court also clarified that the plaintiff had not to pay any sale consideration.

3. For the sake of convenience, the appellants shall be referred to as the original defendants and the respondent shall be referred to as the original plaintiff.

4. The facts giving rise to this Appeal may be summarised as under :

The plaintiff claims to be the lawful owner of properties bearing Revenue Survey Nos.1107/1-2, 1110/1-2-3-4, 1104/1, 1105/2, 1105/1, 1109 and 1143/1 situated at village Karamsad, Taluka and District Anand.

5. The plaintiff instituted a Special Civil Suit No.144 of 2009 in the Court of Principal Senior Civil Judge, Anand for a declaration and injunction to the effect that the properties described in paragraph 1 of the plaint was of the ownership, occupation and possession of the plaintiff and that the plaintiff had not executed any Power of Attorney in favour of the defendants to sell the suit properties.

6. It is the case of the plaintiff that the defendant no.1 (since deceased), on the basis of the so-called bogus Power of Attorney, executed registered sale deeds in favour of his wife i.e. the defendant no.2, and his brother-in-law i.e. the defendant no.3 fraudulently.

7. The plaintiff prayed in the suit filed by him that the transaction at the instance of the original defendant no.1 with respect to the suit properties mentioned in paragraph 4 of the plaint be declared as void and also prayed for a declaration that the ownership, occupation and possession of the suit properties continued to be that of the plaintiff.

8. The record reveals that by amendment of the plaint, certain other properties were also added in paragraph 5(B) being Revenue Survey Nos.578/1, 655/2, 265 and 260/4 situated at village Karamsad.

9. On Revenue Survey No.578/1, a complex in the name of ‘Vallabh Plaza’ was constructed. On Revenue Survey No.578/1 and 655/2, a complex in the name of ‘Radha Park’ has been constructed, and on Revenue Survey No.265 and 260/4, construction in the name of ‘Vallabh Park’ has been made. According to the plaintiff, the construction was made by the defendant no.1 and his transferee-assignee.

10. It appears that during the pendency of the suit, on 9th January 2011 the parties entered into a settlement outside the Court. Initially, the settlement was reduced into writing in the form of a Memorandum of Understanding dated 9th January 2011 duly signed by the parties and attested by a notary. At a later stage, with some modification, the terms of the settlement were reduced into writing on a stamp paper duly signed by the parties, the advocates for the parties and was notarized.

11. On the same day i.e. on 11th January 2011, the parties to the suit filed a joint written consent purshis before the Civil Court being Exh.35. The parties requested the Civil Court to accept the consent terms and pass a decree accordingly in terms of the settlement.

12. The consent terms broadly were on the following four aspe