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DELHI HIGH COURT
V.K. Jain, J.
Santosh Puri —Plaintiff
versus
Anil Puri and Anr. —Defendants
CS(OS) 2338/2012
Decided on 16.10.2012
IMPORTANT POINT
No independent suit can be filed for setting aside compromise decree. Only remedy available to a party to a consent decree to avoid such consent decree is to approach the Court which recorded the compromise and made a decree in terms of it and establish that there was no compromise.
Headnote:Civil Procedure Code, 1908—Order 23, Rules 3, 3A suit for declaration, injunction and recovery of money by owner of property—Case of plaintiff that decree passed by Civil Judge based on the compromise was without jurisdiction being barred by limitation—Held in view of provisions of Rule 3A, if a decree is sought to be challenged on ground that compromise on which it was based was void or voidable and therefore was not lawful, no suit can be filed for setting aside such a decree—Only remedy available to a party who seeks to challenge the decree is either to go back to the Court which had passed the decree on the basis of such a compromise or to file an appeal in terms of Section 96 read with Order XLIII Rule 1A of CPC—Hence held that declaration sought by plaintiff could not be granted in an independent suit—Only remedy open to plaintiff was to file an application before Court which passed the decree, seeking setting aside of decree on ground that it was without jurisdiction. (Paras 5, 11)
Result: Ordered accordingly.
V.K. Jain, J.—This is a suit for declaration, injunction and recovery of money. The plaintiff claims to be the owner of Property No. A-2/150 Safdarjung Enclave, New Delhi. The aforesaid property was purchased by late Shri Raj Kumar Puri, husband of the plaintiff, who expired on 19.06.1986, leaving the plaintiff, two daughters, namely, Dr. Rita Lingam and Dr. Reena Mohindra and one son defendant No. 1 Anil Puri as his legal heirs. Defendant No. 1 and the daughters of the plaintiff relinquished their share in the suit property in her favour, as a result of which she became its absolute owner. It is alleged that since the defendants had been harassing the plaintiff, she left for Malaysia on 14.11.2001 to stay with her daughter Rita Lingam, but the misbehaviour of the defendants persisted even after the plaintiff returned from Malaysia. She, therefore, left for USA on 01.07.2003 to live with her younger daughter Reena Mohindra and her family. When she returned to India, after five years, she found that the defendants had trespassed into several portions of the property and had also rented out two portions of the said property. Defendant No. 1 filed suit No. 345 of 2008, seeking a decree for cancellation of the relinquishment deed executed by him in favour of the plaintiff. The daughters of the plaintiff were also impleaded as defendants in that suit. On the matter being referred for mediation, the counsel for the plaintiff agreed for cancellation of the relinquishment deed and giving 29% of the suit property to defendant No. 1. It was also agreed that the plaintiff would be entitled to 50% of the rent from 01.06.2010, the house would be sold within one year and 71% of the proceedings would go to the plaintiff, whereas the remaining 29% would be retained by defendant No. 1. A decree dated 29.05.2010 was passed in terms of the settlement arrived at during mediation proceedings.
The case of the plaintiff is that the decree dated 29.05.2010 passed by the learned Civil Judge is without jurisdiction being barred by limitation since the suit was filed more than three years after execution of the relinquishment deed. In the present suit, the plaintiff is seeking a declaration that the decree dated 29.05.2010 passed by learned Civil Judge is null and void. She is also seeking a mandatory injunction, directing the defendants to remove their goods from the suit property. She has also sought an injunction directing the defendants not to interfere in her physical possession of the suit property. Another relief sought by her is a direction to the defendants to handover Kisan Vikaspatras, which, according to the plaintiffs, were purchased by them from the rent which belonged to her. She is also claiming recovery of Rs 27,51,350/- from the defendants.
2. A perusal of the consent judgment dated 29.05.2010 discloses the following terms agreed between the parties before Mediation Cell:-
(a) 25% share in the suit property bearing A-2/150 Safdarjung Enclave, New Delhi would vest in defendant No. 1 Anil Puri and 75% in the plaintiff Santosh Puri.
(b) the relinquishment deed dated 20.03.2001 stands cancelled;
(c) the suit property would be mutated and converted into freehold in the ratio of 25% and 75% in favour of Anil Puri and Santosh Puri respectively and the conversion charges/stamp duty would be paid by them in the same ratio.
(d) the suit property would be sold within one year and on sale Anil Puri shall get 29% of the sale proceeds, whereas Santosh Puri will get 71% for herself as well as for her daughters.
(e) the rent proceeds with effect from 01.06.2010 shall be divided in equal proportions between Santoshi Puri and Anil Puri.
(f) Santoshi Puri will get the ground floor vacated from tenants within six months and in case of non-vacation by the tenants even after 06 months, Anil Puri will get 25% and Santosh Puri will get 75% share in the rent proceeds after 06 months.
(g) after vacation of the ground floor by the tenants
