Back
2009 Supreme(UK) 55
2009 (1) UAD 541
SUPREME COURT OF INDIA
Hon’ble Mr. Justice S.B. Sinha and Hon’ble Dr. Justice Mukundakam Sharma
Civil Appeal No. 1085 of 2009
SNEH GUPTA – Appellant
Versus
DEVI SARUP & ORS. – Respondents
Decided on : 17.02.2009
Headnote:(A) Civil Procedure Code, 1908, Or. 23, Rule 3 — Requirements — Compliance of — Nature imperative — A compromise is not binding on such defendants who are not parties thereto — Consent decree is merely an agreement between the parties with the seal of the Court superaddded to it — In case if a compromise is to be held to be binding it must be signed either by the parties or by their counsel or by both, failing which Or. 23, R. 3 would not be applicable.
(Paras 22 to 25 & 45)
(B) Limitation Act, 1963, Schedule, Art. 123 — Applicability of — Art. 123 — In a case where summons have been served upon a party, the first part will apply — Where summons have not been served, the second part shall apply — Limitation is a statute of repose — A suit not filed within the period of limitation, the remedy would be barred — A contested decree must be set aside if it has been passed in violation of law — For the said purpose the provisions contained in the Limitation Act would be able — No law that where the decree is void, no period of limitation shall be attracted at all — Where there is absence of an application for condonation of delay, the Court has no jurisdiction in terms of Sec. 3 of the Limitation Act to entertain the application for setting aside the decree. (Paras 41, 44, 45, 48 & 49)
¼v½ nhokuh izfd;k lafgrk] 1908] vkns'k 23] fu;e 3 & vko';d rF;ksa dk ifjikyu & vkKkRed izdfr & ,sls izfrokfn;ksa ij tks i{kdkj ugha gS dksbZ le>kSrk ck/;dkjh ugha gksrk gS & le>kSrk fMdh ,d ,slh lafonk mu i{kdkjksa ds e/; ekU; gS tks U;k;ky; dh eksgj ds rgr blls tqM+h gqbZ gSa & ml n'kk esa tc fdlh le>kSrs dks ck/;dkjh djkj fn;k x;k gks rks ;g vko';d gS fd ;k rks bl ij i{kdkjksa ds gLrk{kj gksa vFkok muds vf/koDrkvksa vFkok nksuksa ds gh gLrk{kj gksa ftl ds vHkko esa vkns'k 23 fu;e 3 ykxw ugha gksxkA ¼izLrj 22 ls 25 ,oa 45½
¼c½ fyfeVs'ku ,DV] 1963] ifjf'k"V vuqPNsn 123 & dh iz;ksT;rk & vuqPNsn 123 & ml dsl esa tc fdlh i{kdkj dks lEeu rkehy gks tkrk gS rks izFke Hkkx ykxw gksxk & tc lEeu rkehy u gks lds rks f}rh; Hkkx ykxw gksxk & fyfeVs'ku ,d jksdFkke dk vf/kfu;e gS & ,d okn ;fn fyfeVs'ku ds vUrxZr nk;j ugha fd;k tkrk rks mlds fy, dksbZ mipkj ugha gS & ,d fooknkLin fMdh fu"Qy gks tk,xh ;fn ;g dkuwu ds fo#) ikfjr dh xbZ gS & mDr ds lEcU/k esa fyfeVs'ku ,DV ds izkfo/kku ykxw gks tk,saxs & tc dksbZ voS/k fMdh ikl gqbZ gks rks ,slk dksbZ dkuwu ugha fd fyfeVs'ku dh vof/k fcYdqy Hkh x.kuk esa ugha yh tk,xh & tgk¡ ij nsjh dh ekQh ds izkFkZuk i= dh vuqifLFkfr gks rks fyfeVs'ku ,DV dh /kkjk 3 esa U;k;ky; dks fMdh jn~n djus ds izkFkZuk i= dks fopkj gsrq xzg.k djus dk {ks=kf/kdkj ugha gSA
¼izLrj 41] 44] 45] 48 ,oa 49½
Key Points: - The Court held that a compromise decree is not binding on defendants who are not parties thereto unless signed by the parties or their counsel, per Order XXIII Rule 3 CPC. (!) (!) - The decision discusses that a consent/decree based on a compromise must reflect lawful agreement and signing by all necessary parties, or it may be unenforceable. (!) (!) - Article 123 of the Limitation Act has two parts: if summons were served, the first part applies; if not served, the second part applies; the suit to set aside a decree must be filed within 30 days from the date of decree or knowledge of it, depending on service, with limitation as a statute of repose. (!) (!) (!) - If a party had knowledge of the decree and did not file within the period, relief may be barred, and lack of condonation of delay can bar entertaining the application. (!) (!) - The court emphasizes preventing injustice and that a void or voidable compromise decree must be set aside within the applicable limitation, and a void order may still be subject to limitation. (!) (!)
How to determine the binding effect of a compromise decree under Order XXIII Rule 3 CPC?
What is the period of limitation to set aside a compromised decree under Article 123 of the Limitation Act?
What are the consequences when a party to a compromise decree was not a signatory or party to the compromise agreement?
S.B. Sinha, J. — Leave granted.
2. Interpretation of Order XXIII Rule 1 of the Code of Civil Procedure is involved in this appeal. It arises out of a judgment and order dated 13.9.2006 passed by a learned Single Judge of the High Court of Punjab and Haryana setting aside an order dated 29.9.2005 passed by the Additional District Judge, Jagadhari whereby and whereunder the terms of settlement entered into by way of an agreement dated 25.4.1998 between some of the parties hereto were declared illegal as also null and void.
3. Indisputably, two suits were filed being Suit No. 185 of 1989 and Suit No. 303 of 1992 on 20.11.1989 and 21.3.1992 before the Additional Civil Judge, Jagadhari, Haryana and Senior Division Bench and before the Civil Judge, Jagadhari, Haryana, respectively.
In the said suits, inter alia, the question as regards an order of mutation carried out in the Revenue records pursuant to or in furtherance of a transfer made by one Raghuvir Singh in favour of his wife and son stated to be under an oral gift deed representing himself as the successor of Bhanumal was in question. We would refer to the respective claims made in the said suits a little later. We may, however, at this stage, notice the genealogical tree which is as under :
4. Raghbir Singh is said to be the third cousin of Banu Mal. Banu Mal is said to have executed a Will in favour of Munni Devi on or about 14.11.1937. He is again said to have executed a Will in favour of Raghbir Singh on or about 27.3.1943. According to the plaintiff, Raghbir Singh had acquired life interest in the purporting said Will without having any right to alienate, transfer, mortgage or creating any charge on the properties situated in various villages, namely, Rapri, Radur, Ghespur etc.
5. In Suit no. 185 of 1989, the cause of action is said to have arisen when order of mutation was passed in favour of the transferees of Raghbir Singh. Whereas the decree prayed for in Suit No. 303 of 1992 was for a declaration that Raghubir Singh was only having a life interest in the suit property and having not abided the terms and conditions contained in the said Will dated 27.3.1943, has lost his right to manage the property in suit; an order of mutation was the subject-matter of Suit No. 185 of 1989, on the premise, as has been noticed by the learned Trial Judge as under :
“(i) That in the alleged mutation, Banu Mal has been shown to be without his wife and children, but in fact, he had a daughter named Jeewani @ Munni Devi, living at that time. Thus, said mutation was sanctioned by producing a fictious person, in place of Banu Mal;
(ii) that mutation was neither verified nor initiated with date by filed Kanungo, as required under para 7.4 (ii) of the Punjab Land Records Manual;
(iii) that another mutation No. 1423 pertaining to the partition of joint holdings, was sanctioned on 28.2.1954, but there is no mention in the disputed mutation No. 1427, entered on 26.2.1954 and sanctioned on 2.3.1954, therein. Thus, disputed mutation was kept secret and later on got sanctioned, in collusion with revenue officers. The disputed mutation was sanctioned without any request of Banu Mal;
(iv) that mutation No. 1422 and 1423, dated 28.2.1954 show that the consolidation work in village Rapri started on 25.8.1952 and completed on 28.2.1954 but disputed mutation was entered prior to completion of consolidation work and without any approval or sanction of the Consolidation Officer, as required to be made under the Consolidation of Holdings of Punjab Act, 1948. Had it been in the knowledge of Banu Mal, then he would have filed an application before the Consolidation Officer, but no such application is available on the record;
(v) that under the will, Raghubir Singh (defendant No. 4) had a life estate on the property in dispute, but he has alienated/gifted/transferred the property of the Will to different persons, without any right, title and against the dictates of the will. Thus, this fact goes to
