Code of Civil Procedure, 1908 – s.96, Ord.XXIII r.3, Ord.XLIII r.1A(2), r.1(m) – Compromise of suit – Appeals from original decrees – Right to challenge non-appealable orders in appeal against decree – Dispute between parties regarding sale deeds of suit land – Suit by respondent against the appellants wherein compromise between the parties resulting in first consent decree, thereafter another compromise in the suit filed leading to second consent decree – Appellant’s case that she had no notice of either compromise and both consent decrees obtained by fraud – Appellant filed AOs against both decrees u/Ord.XLIII r.1A – Transferee purchasers lodged parallel AOs – Single Judge of High Court, acting on the pronouncement of the larger bench that party to suit must first invoke proviso to Ord.XXIII r.3 and r.1A itself creates no independent right of appeal, dismissed AOs – Interference:
Held: High Court’s directions correctly apply the structure of the statute and does not call for interference – Larger Bench took the right view that such appeals are incompetent since 1976 – CPC, after the 1976 amendment, works in two distinct ways – If a person was already a party to the suit, and denies that any lawful compromise ever took place, CPC requires that person to go back to the trial court under the proviso to Ord.XXIII r.3 and ask that Court to decide whether the compromise is valid – Someone who was not a party to the suit, but whose rights are hurt by a consent decree, may approach the appellate court in a first appeal u/s.96, but only after obtaining leave – Proviso to Ord. XXIII r.3 is not optional, it is the exclusive first port of call for any party on record who denies the compromise – Ord. XLIII r. 1-A does not create a new right of appeal; it merely enables an appellant, already before the appellate court, to attack the decree on the ground that the compromise should not have been recorded – When the fact of compromise is not disputed, the bar in s. 96(3) is absolute – On facts, the appellant never invoked the proviso to Ord.XXIII r.3 and instead lodged appeals from orders on the footing of the deleted Ord.XLIII r.1(m) – It cannot be said that fraud transform a consent decree to an ordinary decree – Fraud, want of authority or other vitiating elements are precisely the matters that the proviso directs the trial court to examine – Unless and until that route is pursued, the statutory bar in s.96(3) remains operative – Appellant was a party to the suits and cannot appropriate remedy reserved for third parties. [Paras 8, 11-17]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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