Ardhendu Biswas and Others vs Anand Moyee Devi and Others

Mungeshwar Sahoo, J.—I have heard the learned counsel, Mr. Chhote Lal Narayan Singh on behalf of the appellant and Mr. Manoj Kumar Sinha on behalf of the respondent on the interlocutory application No. 7052 of 2014. This interlocutory application has been filed by the respondent Nos. 18 to 22 praying for dismissing the First Appeal as not maintainable on the ground that the First Appeal is barred under Section 96 sub-section 3 of the Code of Civil Procedure.

The learned counsel, Mr. Manoj Kumar Sinha for the aforesaid respondents submitted that the Title Suit No. 186 of 1984 was filed by the plaintiff''s respondents claiming partition of the suit property. A compromise application was filed in the year 1996 and the suit was decreed in terms of the compromise. Against the said compromise decree, the defendants filed First Appeal No. 123 of 2011 before this High Court and High Court by terms of order dated 13.3.2013 held that the First Appeal against the compromise decree is not maintainable. Against the said order passed by the Court holding that the First Appeal is not maintainable, no appeal was preferred before the Supreme Court therefore, the order of this Court became final. Pursuant to the said compromise-decree, now the final decree has been directed to be prepared against which the present Appeal has been filed by the defendants, therefore, the First Appeal itself is not maintainable being barred under Section 96 sub-section 3 of the Code of Civil Procedure.

On the other hand, the learned counsel Mr. Chhote Lal Narayan Singh for the appellant submitted that all these matters submitted by the learned counsel for the respondents cannot be decided at this stage. Earlier the appellant No. 1 had filed similar application praying for dismissal of the First Appeal and this Court by terms of order dated 1.9.2014 held that at the instance of some of the appellants, the appeal cannot be dismissed. Therefore, the appellant Nos. 1, 4, 11 and 12 were transposed as respondents. This Court also directed that the matter raised by some of the appellants regarding dismissal of the Appeal shall be considered at the time of final hearing of the appeal. After being transposed as respondent they have again filed this application for dismissing the appeal on the ground of non-maintainability. The learned counsel further submitted that the Hon''ble Supreme Court in review application held that the Appeal before the Supreme Court had already abated as against respondent Nos. 7, 13 and 15, therefore, the preliminary decree is not in existence. In such circumstances, the final decree cannot be prepared. Moreover, some of the respondents of this First Appeal died during the preparation of final decree and no substitution was made, therefore, the decree under challenge is a nullity. On these grounds, the learned counsel submitted that the application is liable to be dismissed.

It is admitted fact that against compromise Judgment and decree dt. 31.7.1996 passed by the learned VIIth Subordinate Judge, Bhagalpur in Title Suit No. 186 of 1984, the defendants had filed First Appeal No. 123 of 2011. The parties were heard in maintainability matter and by terms of order dated 13.3.2013, this Court held that the First Appeal filed by the appellant against compromise decree dt. 31.7.1996 is barred under Section 96(3) C.P.C. and held that the Appeal is not maintainable against the compromise decree dt. 31.7.1996. At that time formal decree was not drawn up. In addition to that finding, it was also held that the Appeal is also barred by law of limitation. Admittedly, this order was never challenged before Hon''ble Supreme Court. Therefore, the order has become now final.

This First Appeal has been filed by the defendants appellants against the order dt. 16th Feb., 2013 passed in the aforesaid title suit. From perusal of the order dt. 16th Feb., 2013, it appears that the plaintiff''s respondents had filed application on 1st Feb., 2013 for preparation of final decree on the ground that the parties have compromised the suit and had filed compromise application dt. 30th July, 1996 and on the basis of compromise application, compromise Judgment was passed on 31.7.1996 but no final decree had been drawn up, therefore, direction was sought for assessment of value of stamp to be filed by the plaintiff''s for preparation of final decree, it appears that after compromise on some ground or the other, the matter was adjourned in the Court below at the instances of the defendants either on the ground of pendency of misc. case or pendency of civil revision or pendency of writ application or pendency of the matter before Hon''ble Supreme Court and lastly by order dt. 16th Feb., 2013, the Court below directed the office to prepare the final decree in terms of compromise decree dt. 31st July, 1996.

It further appears that a Misc. Case No. 13 of 1996 was filed by some of the defendants challenging the compromise order dt. 31.7.1996 on the ground that the compromise order was obtained by practicing fraud and the compromise petition itself is fraudulent. The said misc. case was dismissed holding that the compromise order dt. 31.7.1996 is not liable to be recalled recording various findings against the defendants. Against the said order, the defendants who filed misc. case had filed Civil Revision No. 945 of 2002 before the High Court. This Court allowed the revision application. Thereafter, the plaintiff filed Civil Appeal No. 2728 of 2006 before the Apex Court. The Apex Court by Judgment dt. 15.4.2011 allowed the Appeal and the order of the High Court was set aside and order of the Sub-Judge was restored. Thereafter, review application was filed by the defendants and the Apex Court by order dt. 13.9.2011 refused to interfere with the Judgment dt. 15.4.2011. However, held that the Appeal stands abated as against respondent Nos. 7, 13 and 15. It may be mentioned here that the Appeal before the Hon''ble Supreme Court was arising out of the misc. case filed by the defendant. It has got no relation with the compromise decree passed by the Court below. The order passed by the Court below in the misc. case has been confirmed by the Hon''ble Supreme Court. In review application also, the Supreme Court refused to interfere with the order.

It will not be out of place to mention here that the aforesaid First Appeal No. 123 of 2011 was filed before the High Court against the Judgment based on compromise dt. 31.7.1996. As stated above, pursuant to this Judgment, no decree was ever prepared. Therefore, by order dt. 16.2.2013, the Court only directed to prepare the final decree in terms of compromise dt. 31.7.1996. From the order dt. 16.2.2013 itself, it is clear that after the compromise order dt. 31.7.1996, no final decree has been drawn up. Therefore, the Court below by the order dt. 16.2.2013, merely directed to prepare the final decree according to the compromise order. In such circumstances, this order dated 16.2.2013 tender challenge in this First Appeal is neither a Judgment nor a decree. By this order, the Court below only allowed the application filed by the plaintiff for assessment of value of the stamp to be filed for preparation of final decree. Then the formal decree has been prepared, sealed and signed on 21.3.2013, from which it is clear that the compromise application was directed to form part of decree in the compromise order.

In addition to the above, the First Appeal No. 123 of 2011 challenging the compromise Judgment dt. 31.7.1996 has been held to be not maintainable being barred under Section 96 sub-section 3 C.P.C. by order dt. 13.3.2013.

The Hon''ble Supreme Court in the case of Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai Vs. Rajinder Singh and Others, has held that ''the 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. In that event, the Court which recorded the compromise will itself consider and decide the question as to whether there was valid compromise or not''. In view of this decision, the defendants had already filed Misc. Case No. 13 of 1996 which was dismissed by the trial Court which recorded the compromise. This order has been confirmed by the Hon''ble Supreme Court. Now, again on the same ground, this First Appeal has been filed challenging the order whereby the Court below only and only directed to prepare final decree according to compromise order.

So far the order dt. 1.9.2014 passed by this Court is concerned, it may be mentioned that some of the appellants only had filed the interlocutory application for dismissing the Appeal. Since the other appellant being appellant No. 16 was objecting the application filed by the other appellants, it was directed that the appellants No. 1, 4, 11 and 12 who filed the interlocutory application be transposed as the respondent and it was directed that the maintainability matter shall be considered at the time of final hearing. It may be mentioned here that at that point of time, it was not pointed out by either appellant or the respondent that the First Appeal has not yet been admitted. Moreover, this observation was made by this Court assuming that the Appeal has already been admitted. Further, while observing, this Court did not consider the maintainability matter, in my opinion, therefore, this order will not operate as res judicata because the matter is still pending and it was not decided. If the Appeal is not maintainable and not fit for admission how the maintainability matter will be considered at the time of final hearing. After being transposed as respondent, the respondents have filed this application taking a clear stand that the Appeal had not been admitted and it is barred under Section 96(3) of the Code of Civil Procedure as they are challenging the order whereby direction has been given to prepare final decree. In view of this fact, now only because on 1.9.2014, it was observed that the maintainability matter shall be considered at the time of final hearing, this application filed by the respondent cannot be dismissed and automatically the Appeal which is not maintainable cannot be admitted. This Court also in the case of Gauri Shankar Pathak and Others Vs. Dr. Shankaranand Upadhyay and Others following the decision of the Hon''ble Supreme Court held that appeal against compromise decree is not maintainable. Further in the present case, pursuant to the direction of the trial Court, decree has been prepared and signed on 21.3.2013.

In view of my above discussion of the facts and position of law, I find that the impugned order dt. 16.2.2013 is neither a Judgment nor a decree within the meaning of said terms defined in Section 2(9) and Section 2(2) C.P.C. respectively. Further, the First Appeal challenging the compromise order/Judgment dt. 31.7.1996 has already been held as not maintainable being barred under Section 96(3) C.P.C. I, therefore, find that this First Appeal is not maintainable and is not fit for admission. Accordingly, I.A. filed by the respondents is allowed. In the result, this First Appeal is dismissed as not maintainable and is not fit for admission.