The Hon'ble Supreme Court in the case of Pushpa Devi Bhagar (D) by LR Vs. Rajinder Singh & Ors. [AIR 2006 SC 2628 (1)] has had the occasion to deal with a situation where a consent decree was sought to be impugned in appeal on one ground or another. The legal position has been delineated by the Hon'ble Supreme Court in para 12 of the aforesaid judgment which read as under :
The position that emerges from the amended provisions of Order 23, can be summed up thus :
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1, Order 43.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.
(iv) A consent operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23.
Therefore, 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 a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made.
Rajasthan High Court
Smt Lajja Devi vs Khushi Ram Prajapat on 21 January, 201
S.B. CIVIL MISC. APPEAL NO.1032/2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
Date of Order : 21.01.2014
HON'BLE MR. JUSTICE ALOK SHARMA Citation;AIR 2014(NOC)510 Raj
This civil misc. appeal under Section 28 of the Hindu Marriage Act, 2005 (hereinafter 'the Act of 2005') has been filed against the judgment and decree dated 05.11.2011, passed by the District Judge, Alwar in civil misc. application No.183/2011 titled Khushiram Prajapat Vs. Smt. Lajja Devi whereby a consent decree under Section 13B of the Act of 2005 has been passed dissolving the marriage between the appellant-wife and the respondent-husband.
Mr. J.R. Tantia, appearing for the appellant-wife, submits that the appellant is an absolutely illiterate lady and was married to the respondent on 31.01.2009. It is submitted that the judgment and decree dated 05.11.2011 purportedly by consent for dissolution of marriage has been obtained fraudulently and the appellant at no point of time signed an application under Section 13B of the Act of 2005, nor even entered the witness box before the District Judge, Alwar nor make any statement as attributed to her before the learned trial court. It is submitted that the judgment and decree for dissolution of marriage on 05.11.2011 is absolutely fraudulent and in fact an outcome of criminal enterprise. It is stated that the appellant came to know of the judgment S.B. CIVIL MISC. APPEAL NO.1032/2012 (Smt. Lajja Devi Vs. Khushiram Prajapat)and decree dated 05.11.2011 only on or about 14.11.2011 when the respondent took the appellant to her father's house and left her there stating that the marriage between the appellant and the respondent had come to an end under the decree of the District Judge, Alwar.
I have heard the counsel for the appellant and perused the judgment and decree dated 05.11.2011 which records the factum of an application under Section 13B of the Act of 2005 having been filed and after the statutory cooling period having lapsed, the judgment and decree of divorce being passed.
Section 96(3) CPC categorically states that no appeal shall lie from a decree passed by the court with the consent of the parties. There is thus a clear statutory prohibition against filing of an appeal against a consent decree.
Mr. J.R. Tantia, counsel for the appellant, however submits that a decree obtained fraudulent purportedly on consent cannot come within the rigor of Section 96(3) CPC. He submits that if the provisions of Section 96(3) CPC were to be so construed then fraudsters would flourish and the victims of their fraud consigned to suffer the injustice in perpetuity. It is submitted that this Court should also take into consideration the specific circumstance of the rural background and illiteracy of the appellant as also the fact that the purported judgment and decree dated 05.11.2011 is palpably and ex facie unsustainable inasmuch as ordinarily it would be expected under a consent decree that provisions for maintenance / permanent alimony would be made—and none has been made in the decree allegedly granted by the District Judge, Alwar and now impugned before this Court.
S.B. CIVIL MISC. APPEAL NO.1032/2012 (Smt. Lajja Devi Vs. Khushiram Prajapat) Mr. Mohit Gupta, appearing for the respondent, would however submit that this civil misc. appeal alleging that the judgment and decree dated 05.11.2011 is fraudulent is a mere afterthought and filed after a delay of about seven months of its passing. He further submits that on the appellant's own say, she came to know of the judgment and decree of divorce dated 05.11.2011 on or about 14.11.2011 when she was allegedly left at her father's place by the respondent and yet no steps were taken forthwith for a challenge to the judgment and decree dated 05.11.2011—if it indeed was fraudulently obtained. Counsel submits that there is assumption of legality of court records which should not be negated on the mere say of the applicant. It is submitted that the appeal is not maintainable owing to the bar under Section 96(3) CPC.
Be as it may, in my considered opinion, in view of the bar under Section 96(3) CPC, an appeal against a consent decree is not maintainable. On the face of it, the judgment and decree dated 05.11.2011 is a consent decree. The Hon'ble Supreme Court in the case of Pushpa Devi Bhagar (D) by LR Vs. Rajinder Singh & Ors. [AIR 2006 SC 2628 (1)] has had the occasion to deal with a situation where a consent decree was sought to be impugned in appeal on one ground or another. The legal position has been delineated by the Hon'ble Supreme Court in para 12 of the aforesaid judgment which read as under :
The position that emerges from the amended provisions of Order 23, can be summed up thus :
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1, Order 43.
S.B. CIVIL MISC. APPEAL NO.1032/2012 (Smt. Lajja Devi Vs. Khushiram Prajapat)
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.
(iv) A consent operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23.
Therefore, 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 a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.08.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.08.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in section 96(3) of the Code.
Consequently, In my considered opinion, the present appeal is not maintainable. The appellant shall however be free to take her remedy as available in law. In the event the appellant were to pursue her remedy by S.B. CIVIL MISC. APPEAL NO.1032/2012 (Smt. Lajja Devi Vs. Khushiram Prajapat) approaching the court which passed the judgment and decree dated 05.11.2011, it is expected that the application moved by the appellant would be disposed of expeditiously on its own merits in accordance with law.
The appeal is accordingly disposed of. The stay application needs no address in view of the appeal itself disposed of.
(ALOK SHARMA), J MS/ All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A.
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