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DELHI HIGH COURT
Suresh Kumar Kait and Saurabh Banerjee, JJ.
Rita Wadhwa – Appellant
versus
Sanjeev Sarin (Deceased) Thr. Lrs. and Anr. – Respondents
RFA (OS) 94 of 2019
Decided on 18.8.2022
(A) Civil Procedure Code, 1908 – Order XXIII Rule 3 – Compromise of Suit – Partition suit – Final decree of partition qua property was passed as parties were ad idem and as property was indivisible by metes and bounds – Impugned decree was passed on the basis of compromise entered into between siblings and is a valid consent decree – Client is bound by admissions of fact made by Counsel, especially if so authorised – Appellant is bound by statement of her own nominated Counsel – Sudden change in behaviour of appellant on suffering impugned decree is a clear after-thought to somehow resile therefrom – Based on compromise inter se siblings, impugned decree passed by Single Judge is legally valid as it was made by and in presence of authorised pleader of appellant. (Paras 15, 16, 19, 20, 23 and 24)
(B) Civil Procedure Code, 1908 – Section 96(3) and Order XXIII Rules 3 and 3A – Challenge against compromise decree – Suit is not maintainable for setting aside a decree based on compromise which has led to passing of a decree as court is only instrumental in recording and effecting compromise arrived between parties – Appellant cannot take refuge under two provisions for same cause of action – Impugned decree has all bearings of a “contract” which has final approval of a court of law – Impugned decree under challenge is a consent decree based on a legally valid compromise, present appeal is not maintainable – Appellant is barred from agitating on the ground of estoppels as impugned decree is legally valid, binding and subsisting and since not set aside, has force of a decree. (Paras 27, 31 and 33 )
Result: Appeal dismissed with costs.
JUDGMENT
Saurabh Banerjee, J.—“Sibling harmony is a boon bringing the best but sibling rivalry is a bane bringing the worst.”
Former brings happiness but latter brings sadness.
The present case, unfortunately, deals with sibling rivalry which has brought to the fore the worst amongst them. There is much acrimony and bad blood between them. The parties to the proceeding are siblings (hereinafter referred as “siblings”) born out of the same parents, father- Mr. I.C. Jain and mother-Mrs. Madhurekha Sarin, who expired intestate on 23.01.1987 and 09.05.1999 respectively. Appellant is the sister of respondent Nos. 1 and 2.
2. As per the brief facts of the case set up in the appeal, on 09.01.2008 respondent No.1-brother (since deceased) instituted a suit for partition, rendition of accounts, declaration, permanent and mandatory injunction (hereinafter referred as “suit”) against the appellant-sister and respondent no.2-brother (since deceased) claiming partition and 1/3rd share of the entire estate of their deceased mother, including property bearing no. B-1/23, Vasant Vihar, New Delhi (hereinafter referred as “property”).
3. Upon service, respondent no.2 appeared and supported the case of respondent no.1, whereas appellant disputed and claimed ownership of the property on the basis of a photocopy of an alleged Will of their deceased mother in her favour. After completion of pleadings, numerous failed efforts for amicable resolution of disputes between parties through arbitration and mediation and recording of evidence, when the suit was listed for final arguments on 13.08.2019 after more than 11 years for adjudicating validity of the Will claimed to be executed by the deceased mother, learned counsel for appellant sought time to file written note on arguments of 15 pages and accordingly, the suit was adjourned for the next day, i.e. 14.08.2019. Learned Single Judge on 14.08.2019, after recording the terms of compromise inter se the parties through their respective counsels, passed the consent judgment and decree dated 14.08.2019 (hereinafter referred as “impugned decree”) holding in the relevant paragraphs as under:—
“2. The counsel for the defendant no.1 Rita Wadhwa states that the defendant no.1, for the sake of settlement / compromise, is not pressing the claim under the Will set up by her and is agreeable to partition of the estate of Late Smt. Madhurekha Sarin, with the deceased plaintiff Sanjeev Sarin, defendant no.1 Rita Wadhwa and deceased defendant no.2 Rajiv Sarin getting one-third undivided share therein.
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4. The counsel for the defendant no.1 has in Court handed over a list of such movables with annexures and the counsel for the plaintiff and the counsel for defendant no.2 are agreeable to partition also of the said movables as reflected in the said list.
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6. The counsel for the defendant no.2 has also contended that besides the aforesaid properties, there are other properties also. It is however admitted that no particulars of or evidence with respect to the said other properties has come on record. Though the counsel for the defendant no. l has contended that since the parties are settling, a provision be made therefor also, but needless to state that the counsel for the plaintiff and the counsel for the defendant no.2 disputes the said other properties or liability thereof for partition.
7. All that can thus be observed is that it will be open to the parties to, if so advised, take separate proceedings with respect to any other properties besides property bearing No.B-1/23, Vasant Vihar, New Delhi and the movable properties of the deceased Smt. Madhurekha Sarin contained in Exhibit-Cl supra.
8. The counsel for the plaintiff and the counsel for the defendant no.2 state that for the sake of settlement, they are not pressing their claim for mesne profits against the defendant no.1.
9. Accordingly, a preliminary decree for partition of (i) property bearing No. B-1/23, Vasant Vihar, New Delhi;
SupremeToday
(1) Client is bound by admissions of fact made by Counsel, especially if so authorised.(2) Suit/Appeal is not maintainable for setting aside a decree based on compromise.
A consent decree based on a valid compromise is binding, and appeals against such decrees are barred under Section 96(3) of the Code of Civil Procedure.
The impugned decree was a consent decree based on a valid compromise inter se siblings, and the appellant was bound by the statement of her counsel. The Court found the impugned decree to be legally ....
An appeal against a consent decree is barred under Section 96(3) of the CPC; aggrieved parties must contest the decree's validity in the same court that issued it.
A consent decree obtained by fraud must be challenged in the court that issued it; separate suits for challenge are not maintainable.
A party aggrieved by a compromise decree has a right to challenge the compromise decree by way of an appeal or to approach the same court which passed such decree by way of an appropriate application....
(1) No suit shall lie to set aside a decree on the ground that compromise on which decree is based was not lawful.(2) Mere clever drafting would not permit plaintiff to make suit maintainable which o....
A consent decree is valid and binding on the parties only if the consent is given voluntarily and with full knowledge of the implications of the decree.
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