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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BELA M. TRIVEDI, G.R. UDHWANI, V.P. PATEL, JJ.
Sakina Sultanali Sunesara (Momin) and Ors. – Appellant
Versus
Shia Imami Ismaili Momin Jamat Samaj and Ors. – Respondents
R/Appeal from Order No. 33, 16, 18, 19, 35, 36 of 2017, R/Special Civil Application No. 20260 of 2017, Civil Application No. 1 to 5 of 2017, 1 of 2018
Decided On : 28-08-2019
Civil Procedure Code, 1908 – Order 43 Rule 1 – Decree passed by the Trial Court, on the basis of compromise between the parties ('Consent Decree'), what remedy the 'aggrieved party' would have before the Appellate Court. Whether it would be 'First Appeal' under Section 96 of CPC or 'Appeal from Order' under Order 43 Rule 1 A of the CPC – Held, Appellant was the aggrieved third party, who was not the party to the suit or party to the compromise on the basis of which the decree under challenge was passed. Such a decree qua the appellant - third party could not be construed as the "consent decree" so as to attract the bar under Section 96(3) of CPC. If the right of third party is vitally and adversely affected by the decree passed by the Court on the basis of the compromise arrived at between the parties to the suit, under Order XXIII, Rule 3, he can certainly file an appeal with the leave of the appellate Court under Section 96(1) of CPC. Such a decree being not a "consent decree" so far as third party appellant was concerned, the bar under Section 96(3) could not be made applicable to him. If the third party appellant is able to convince the appellate Court that his right is substantially and adversely affected by the passing of such compromise decree, and the leave to appeal is granted by the appellate Court, his appeal against such decree based on the compromise, would be maintainable under Section 96(1) read with Order XLI of CPC – Appeal dismissed
(Para 41)
Facts of the case:
Decree passed by the Trial Court, on the basis of compromise between the parties ('Consent Decree'), what remedy the 'aggrieved party' would have before the Appellate Court. Whether it would be 'First Appeal' under Section 96 of CPC or 'Appeal from Order' under Order 43 Rule 1 A of the CPC
Findings of the court:
Appellant was the aggrieved third party, who was not the party to the suit or party to the compromise on the basis of which the decree under challenge was passed. Such a decree qua the appellant - third party could not be construed as the "consent decree" so as to attract the bar under Section 96(3) of CPC. If the right of third party is vitally and adversely affected by the decree passed by the Court on the basis of the compromise arrived at between the parties to the suit, under Order XXIII, Rule 3, he can certainly file an appeal with the leave of the appellate Court under Section 96(1) of CPC. Such a decree being not a "consent decree" so far as third party appellant was concerned, the bar under Section 96(3) could not be made applicable to him. If the third party appellant is able to convince the appellate Court that his right is substantially and adversely affected by the passing of such compromise decree, and the leave to appeal is granted by the appellate Court, his appeal against such decree based on the compromise, would be maintainable under Section 96(1) read with Order XLI of CPC
Result: Appeal dismissed
JUDGMENT :
Bela M. Trivedi, J.
1. The following issues have been placed for consideration before the Full Bench, pursuant to the order passed by the Single Bench on 7.12.2017 in the captioned matters:-
(B) Which of the following two sets of the decisions of the Division Benches of this Court, connotes the correct position of law.
(i) Judgment of the Division Bench of this Court dated 04.07.2013 recorded on First Appeal No. 3804 of 2012 in the case of Legal Heirs of Decd. Ullasbhai Parsottambhai (supra) and
(ii) Order of the Division Bench of this Court dated 27.12.2012 recorded on Civil Application No. 11987 of 2012 in the case of Indiraben Ratilal Adhia (supra).
OR
(i) The judgment of the Division Bench of this Court, in the case of M/s. Sanskruti Infra Developers Pvt. Ltd. (supra), (dated 16.08.2016 recorded on First Appeal No. 2536 of 2015) as noted in para: 7.1 above, and
(ii) the judgment of the Division Bench of this Court in the case of Kantibhai Viththalbhai Ukani (supra), (Civil Application (Leave to Appeal) No. 5223 of 2016 - order dated 11.08.2016), as noted in para: 7.2 above.
(C) Whether an application by an 'aggrieved party' before the Trial Court for setting aside a 'consent decree', invoking Order 23 Rule 3 of CPC would be maintainable."
2. The brief facts as transpiring from the record are that the Appellants of the Appeal from Order No. 16 of 2017, who are the same as the Appellants in Appeal from Order No. 33 of 2017, were sued in a suit being Special Civil Suit No. 6 of 2016 and Special Civil Suit No. 19 of 2016 respectively through their power-of-attorney holder. The power-of-attorney holder was stated to have accepted the summons in the said two suits. The said power-of-attorney holder entered into a compromise with the plaintiffs of the said two suits, and the decrees came to be passed by the Court on the basis of the said compromise. According to the appellants, the said power-of-attorney was already cancelled since long, and therefore, the said power-of-attorney holder had acted unauthorizedly. Thus, according to the appellants of the said two Appeals from Order, though the appellants were the party to the said two suits, they were actually not the party to the consent/compromise when the decree dated 15.3.2016 and 17.12.2016 were passed in the said two suits. Being aggrieved by the said two decrees passed in the Special Civil Suit No. 6 of 2016 and Special Civil Suit No. 19 of 2016, which were passed after recording the compromise, the A.O. No. 16 of 2017 and the A.O. No. 33 of 2017 respectively have been filed under Order XLIII Rule 1-A of Civil Procedure Code, 1908 (hereinafter referred to as "the CPC").
3. The Appellants of the A.O. No. 18 of 2017 and of the A.O. No. 19 of 2017 have also challenged the impugned decree dated 15.3.2016 in Special Civil Suit No. 6 of 2016, however, the said Appellants were not the party to the said suit.
4. The Appellants of the A.O. No. 35 of 2017 and of the A.O. No. 36 of 2017 have also challenged the impugned decree dated 17.12.2016 passed in Special Civil Suit No. 19 of 2016, however, the said appellants were also not the party to the said suit. It may be noted that the appellants of the A.O. No. 18 of 2017 and the A.O. No. 35 of 2017 are the same appellants, and similarly the appellants of the A.O. No. 19 of 2017 and the A.O. No. 36 of 2017 are also the same.
5. Thus, the appellants of A.O. No. 16 of 2017 and A.O. No. 33 of 2017 are the parties to the suit, but allegedly not the parties to the compromise. The appellants of A.O. No. 18 of 2017 and A.O. No. 19 of 2017 were neither the parties to the Special Civil Suit No. 6 of 2016, nor were the parties to the compromise. S
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