Summary
The appellants' 2003 suit to declare a compromise decree in their grandfather's partition suit null and void and to seek partition of 7 acres was dismissed by the trial court and the High Court. The Supreme Court affirmed: the land was joint family property bought from family funds, the appellants' interest was represented by their father, and in any event a compromise decree cannot be challenged by a fresh suit (Order XXIII Rule 3A CPC), the only remedy being a recall application before the court that passed it.
Issues
- Whether the suit property, purchased in the name of the appellants' father, was his self-acquired property or joint family property liable to partition.
- Whether a compromise decree can be set aside by filing a fresh suit alleging that the compromise was obtained by coercion or collusion.
- Whether the appellants, who were not parties to the compromise decree and whose father never challenged it, could maintain a suit against it.
Provisions considered
- Order XXIII Rule 3, Code of Civil Procedure, 1908Before passing a compromise decree the court must be satisfied that the suit has been adjusted by a lawful compromise; once so passed, no appeal lies against it (Section 96(3)). The remedy of a party alleging there was no valid compromise is an application to the court that recorded it under the proviso to Rule 3. (¶¶ 10, 12)
- Order XXIII Rule 3A, Code of Civil Procedure, 1908Rule 3A bars a suit to set aside a decree on the ground that the compromise on which it is based was not lawful. Even accepting the plea that the father was coerced into the compromise, a fresh suit was not a valid remedy; a recall application before the decreeing court was. (¶¶ 11, 12)
- Section 96(3), Code of Civil Procedure, 1908Cited for the rule that no appeal lies from a decree passed with the consent of parties. (¶¶ 10, 12)
- Order II Rule 2, Code of Civil Procedure, 1908The suit was additionally held barred because it did not include all the properties that were part of the appellants' earlier partition suit. (¶¶ 5, 14)
Held
- On concurrent findings, the appellants failed to prove that the suit property was not ancestral; although purchased in the father's name, it was bought from family funds and is joint family property. (¶ 7)
- Where the appellants' father represented their interest in the partition suit and the appellants themselves later obtained a decree giving them half of their father's share (including his share under the compromise), which they never challenged, their claim that the compromise was fraudulent cannot be accepted. (¶¶ 8, 9)
- A compromise decree passed after the court's satisfaction under Order XXIII Rule 3 cannot be challenged in appeal (Section 96(3)) or by a fresh suit (Order XXIII Rule 3A). The only remedy is to approach the court that recorded the compromise and establish that there was no valid compromise, a consent decree being a contract superimposed with the court's approval. (¶¶ 10, 11, 12)
- Even if the father was coerced into the compromise, the remedy lay in a recall application by him before the decreeing court; he never filed one and admitted the decree. If the property were the father's self-acquired property he could dispose of it as he wished, and where he has no grievance against the consent decree his sons cannot challenge it. (¶¶ 12, 13)
- The suit was also barred by Order II Rule 2 CPC for omitting properties included in the earlier suit, and by res judicata or constructive res judicata, the partition of the suit property having been concluded in earlier litigation. (¶ 14)
Result
Leave granted; appeal dismissed; High Court order dated 23.09.2022 affirmed; interim orders vacated; pending applications disposed of.