Back
1996 Supreme(P&H) 1173
PUNJAB AND HARYANA HIGH COURT
R.L. Anand, J.
Central Bank of India - Appellant
Versus
Sewa Singh - Respondents
R.S.A. No. 2897 of 1995.
Decided On : 7 August, 1996
For the Appellant :R.K. Aggarwal, Advocate.
For the Respondent:R.K. Gupta, Advocate.
A consent decree is one that is passed with the consent of all the parties to the suit. An appeal from a consent decree is barred under Section 96(3) of the CPC.
Headnote:
CIVIL PROCEDURE CODE - ORDER 34 - SUIT FOR RECOVERY OF MONEY - CONSENT DECREE - STATEMENT OF COUNSEL - NECESSITY - SECTION 96(3) - APPEAL - MAINTAINABILITY.
Fact of the Case:
The Bank filed a money suit for the realization of the suit amount along with future interest by the sale of mortgaged/hypothecated properties. The defendants' counsel made a statement before the trial Court that the suit be decreed and simple interest be granted only on the principal amount. The trial Court passed a decree accordingly. The Bank appealed, contending that the trial Court erred in granting interest only on the principal amount and in not ordering the realization of the decretal amount by the sale of mortgaged/hypothecated property. The first appellate Court dismissed the appeal, holding that it was not maintainable under Section 96(3) of the Code of Civil Procedure (CPC) as the trial Court's decree was a consent decree.
Finding of the Court:
The High Court held that the trial Court's decree was not a consent decree as the Bank's counsel had not agreed to the offer made by the defendants' counsel. The High Court also held that the first appellate Court erred in dismissing the appeal on the ground that it was not maintainable under Section 96(3) of the CPC.
Issues: 1. Whether the trial Court's decree was a consent decree? 2. Whether the first appellate Court erred in dismissing the appeal on the ground that it was not maintainable under Section 96(3) of the CPC?
Ratio Decidendi: 1. A consent decree is one that is passed with the consent of all the parties to the suit. In the present case, the Bank's counsel did not agree to the offer made by the defendants' counsel. Therefore, the trial Court's decree was not a consent decree. 2. Section 96(3) of the CPC bars an appeal from a consent decree. However, in the present case, the trial Court's decree was not a consent decree. Therefore, the first appellate Court erred in dismissing the appeal on the ground that it was not maintainable under Section 96(3) of the CPC.
Final Decision: The High Court allowed the appeal, set aside the impugned judgments and decrees of the trial Court and the first appellate Court, and remanded the case to the trial Court for a fresh trial.
R.L. Anand, J. - Central Bank of India, Pehowa (hereinafter referred to as the Bank) has filed the present R.S.A and it has been directed against the judgment and decree dated 19.9.1995 passed by the Court of District Judge, Kurukshetra, who affirmed the judgment and decree dated 29.10.1994 passed by the Court of Sub Judge Ist Class, Pehowa.
2. Brief facts of the case are that the Bank filed a money suit for a sum of Rs. 2,17,912/- against the defendants under Order 34, C.P.C., with a prayer that the suit amount along with future interest be realised by the sale of the mortgaged/hypothecated properties with the Bank.
3. The defendants were summoned. Shri B.R. Chawla, Advocate at Pehowa, was representing the defendants and on 29.10.1994 he made a statement before the trial Court to the effect:-
"Stated that the suit of the plaintiff be decreed. Simple interest be granted only on the principal amount".
No statement of the counsel for the plaintiff-Bank was recorded. The trial Court on the statement of the learned counsel for the defendants passed the following order:-
"Parties have compromised. Statement of learned counsel for defendant has been recorded. In view of his statement, the suit of plaintiff- Bank for recovery of Rs. 2,17,914/- is decreed with costs and future interest at the rate of 17.5% per annum on principal amount of Rs. 72,000/- from the date of filing of this suit till actual realisation of decreatal amount. The defendants are directed to make the payment of decretal amount within six months, failing which the plaintiff-Bank shall be entitled to recover the decretal amount by filing execution as per law. Decree sheet be prepared accordingly. File be consigned to record room.
Announced : 29.10.94
Sd/- Sub Judge Ist Class, Pehowa."
4. The Bank was not satisfied with the judgment and decree pased by the trial Court, perhaps for two reasons - Firstly, the trial Court was not justified in granting interest on the principal advanced amount of Rs. 72,000/- and secondly, the trial Court did not order that the decretal amount be realised by the sale of mortgaged/hypothecated property.
5. The Bank filed the first appeal in the Court of District Judge, Kurukshetra, who vide the judgment and decree dated 19.9.1995 dismissed the appeal of the Bank mainly on the ground that the judgment and decree of the trial Court was passed on consent and by virtue of the provisions of Section 96(3), C.P.C., the appeal was not maintainable. The Bank is again aggrieved by the judgment and decree of the first appellate Court and has come in the regular second appeal, which is being disposed of at the motion stage.
6. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case.
7. I am of the considered view that for the reasons set forth in the later portion of the judgment the judgment of the trial Court as well as of the first appellate Court, the appeal cannot stand in the eyes of law. At the cost of repetition it may be stated that the suit of the Bank was for the realisation of the suit amount along with future interest by the sale of mortgaged/hypothecated properties. Whether any consent was given by the plaintiff or not before the trial Court, it has to be ascertained whether the trial Court recorded any statement of the plaintiffs counsel. It has been admitted at the bar by the counsel for the parties that on 29.10.1994 Shri B.R. Chawla, Advocate gave the statement to the effect that the suit of the plaintiff be decreed and simple interest on the principal amount be granted. The trial Court ought to have recorded the statement of the counsel for the plaintiff whether this offer given by the defendant was acceptable to him or not. In the absence of such statement, it cannot be said that the judgment and decree dated 29.10.1994 was passed on consent. Otherwise also, the judgment and decree of the trial Court was not in conformity with the prayer made by the plaintiff in the
