In RFA(OS) 94/2019-DEL HC- Appeal from decree passed by Court with consent of parties, including those passed under Order XXIII Rule 3 CPC, shall not lie and is barred u/s 96(3): Delhi HC
Justices Suresh Kumar Kait & Saurabh Banerjee [18-08-2022]

Read Order: RITA WADHWA v. SANJEEV SARIN (DECEASED) THR LRS & ANR 

Mansimran Kaur

New Delhi, August 22, 2022: A suit preferred  for setting aside  decree based on compromise which has led to passing of a decree is not maintainable,  as the court is only instrumental in recording and effecting the compromise arrived between the parties, the Delhi High Court has observed.

The Division bench of Justice Suresh Kumar Kait and Justice Saurabh Banerjee disposed of the appeal in the present case instituted by the appellant by observing that the  sudden change in behaviour of appellant on suffering the impugned decree was  a clear after-thought to somehow resile therefrom.

The present case pertained to a sibling rivalry. The parties to the proceedings were siblings born out of the same parents, father- Mr. I.C. Jain and mother-Mrs. Madhurekha Sarin, who expired intestate. Appellant was the sister of the first and second respondent. 

Facts in brief for the adjudication of the present appeal were that on January 1, 2008, the first respondent instituted a suit for partition, permanent and mandatory injunction against the appellant-sister and the second respondent-  brother (since deceased) claiming partition and 1/3rd share of the entire estate of their deceased mother, including property situated at Vasant Vihar, New Delhi.  The second respondent supported the case of the first respondent whereas the 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. 

Subsequently, a final decree of partition was passed of the immovable properties as per  shares declared in the preliminary  decree of partition.  Thereafter, appellant filed an application under Section 151 of The Code of Civil Procedure, 1908, without mentioning the provisions of Section 114 read with Order XLVII, CPC, for review / modification of impugned decree. The Single Judge dismissed the said application. In view of the same, the present appeal was preferred by the appellant assailing the impugned decree and the impugned order as well.

After hearing the submissions of the parties at length, the Court noted that the question that was put forth for adjudication in the present case was whether the impugned decree was  a consent decree based on compromise of the suit between siblings. In view of the same, the Court noted that the  two vital aspects borne out from a reading of Order XXIII rule 3, CPC were that  firstly the same is in two parts: Part A: when it is proved to the satisfaction of the Court that if a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the court can proceed to pass a decree in accordance therewith; and Part B: when the second party satisfies to the first party in respect of the whole or any part of the subject matter of the suit, the court can order such agreement, compromise or suit to be recorded and can proceed to pass a decree in accordance therewith qua the parties involved in the suit and secondly such agreement, compromise a suit inter se the parties may be with respect to the whole or any part of the subject matter of the suit.

 As flowing from the above, compromise falling under Part A has to be in writing and signed by parties in the form of an application and thus has a limited scope whereas a compromise under Part B can be on an oral statement and thus has wider scope. In the present case, the compromise inter se siblings took place inside the court before the Single Judge on the basis of statements given by the respective counsels for the parties, including that of appellant. Pertinently, at the time of passing of the impugned decree, counsel for appellant, instead of pressing her claim under the Will set-up by appellant, agreed to the partition of the estate of the deceased mother, the Court noted. 

It was for this reason; the counsel for respondents first and second agreed not to press their claim for mesne profits against appellant. It is thus that a final decree of partition regarding the property was passed as parties were ad idem and as the said property was indivisible by metes and bounds and appellant is directed to allow inspection to proposed buyer(s) without causing any obstructions. 

In view thereof, as the compromise entered between siblings is falling in Part B and not Part A, no formal application in writing with signatures was required to be filed by siblings. The impugned decree was thus passed on the basis of compromise entered into between the siblings and is a valid consent decree, the Court noted. 

In furtherance of the same, the Court also noted that it is trite in law that a client is bound by admissions of fact made by the counsel, especially if so authorised. At this stage reliance was placed in the case of  Om Prakash Vs. Suresh Kumar . 

Thus, based on the compromise inter se siblings, impugned decree passed by the Single Judge was legally valid as it was made by and in the presence of authorised pleader of the appellant i.e. her counsel, who had full power and authority to do so, the Court noted. 

On the issue of maintainability of the present appeal, the Court took into account Section 96 (3) of CPC. The Court said, “…an appeal from impugned decree passed by a court with the consent of the parties, including those passed under Order XXIII rule 3, CPC, shall not lie and is barred under Section 96(3). Reliance was placed on the case of Triloki Nath Singh Vs. Anirudh Singh (Decd.) thru LR’s. 

It was further noted by the Court that interestingly  by virtue of its application under Section 151, CPC appellant had in fact tried to take benefit of Order XXIII rule 3, CPC and also order XLVII rule 1, CPC by seeking both modification and review of the impugned decree at the same time. Appellant cannot take refuge under two provisions for the same cause of action, as she was barred from challenging the impugned order before us under Order XLVII rule 7(1), CPC.

Thus, at the outset the Court after considering  the factual position and having held that the impugned decree under challenge was a consent decree based on a legally valid compromise, the Court stated that the  present appeal was  not maintainable. Hence, there was no infirmity, perversity or illegality in the impugned decree passed by the Single Judge, the Court observed.