Ashis Kumar Ghosh And Ors. vs Gopal Chandra Ghosh, Being Dead, ...

on 17 March, 2004

Calcutta High Court Calcutta High Court Ashis Kumar Ghosh And Ors. vs Gopal Chandra Ghosh, Being Dead, ... on 17 March, 2004 Equivalent citations: 2004 (3) CHN 146 Author: D K Seth Bench: D K Seth, R N Sinha JUDGMENT D. K. Seth, J. Appellants' contention: 1. Mr. Sabyasachi Bhattacharyya, learned Counsel for the appellants, had challenged this judgment of affirmance in this second appeal, deciding the maintainability of the suit on the question of forum, on the ground that Order 23 Rule 3 proviso read with the explanation and Rule 3A of the Code of Civil Procedure (CPC) would not stand in the way of the maintainability of a suit by persons who were not parties to the suit since compromised when the scope of challenge under Rule 3 proviso read with explanation and Order 43 Rule 1(a)(ii) or within the scope of Order 21 Rule 101 read with Section 47 CPC, had elapsed. The suit would not be barred by reason of the specific provision in the Contract Act relating to void and voidable contracts where fraud was alleged in such a circumstances. He had led us through various provisions of CPC as well as the Contract Act and the decisions of this Court in Gosto Behari Pramanik v. Malati Sen, and Suraj Kumari v. District Judge, Mirzapur, . Respondents' contention: 2. Mr. Mukherjee, learned Counsel for the respondents, on the other hand, pointed out that by virtue of the provisions incorporated in the 1976 CPC, the legislature has expressed its intention to shorten the litigation and confine and restrict the forum in certain cases where there were scope for invention of mode and method to lengthen the proceedings. Order 23 Rule 3 proviso read with Rule 3A and the explanation indicates such an intention which is again supported by Order 43 Rule 1A which virtually permits an appeal in such a case despite Section 96(3) CPC. In support of his contention he sought to draw analogy from the provisions contained in Section 47 and Order 21 Rule 101 CPC. According to him, the forum being restricted, there is no scope for maintaining separate suit. He further contended that the compromise was effected between Manmotha Kumar Ghosh and Kanak Kumar Sarkar in 1978, some months before Manmotha Kumar died admitting the title of Kanak Kumar in respect of the certain properties. The plaintiffs were claiming through Manmotha by virtue of an alleged Will purported to be executed by Manmotha, on which probate had been applied for; and that too the scope of the suit was restricted in respect only of two properties in which the plaintiffs were seeking to restrain the respondents from proceeding with some suit against some other persons. Therefore, in such a case, according to him, both the Courts below were justified in holding that the suit was not maintainable. Mr. Mukherjee had also relied on the decisions in Banowarilal v. Chando Devi and Anr., ; Morium Bibi and Ors. v. Musst. Showkatara Begum and Ors., 98 CWN 1974; Jnanendra Chandra Nath (decd) v. Pabitra Bhowmik and Ors., 1992(1) CLJ 130 and S. M. Seeni Ibrahim Sahib and Anr. v. S.M. Sultan Ibrahim, 2000(9) SCC 536. Reply of the appellants : 3. In reply Mr. Bhattacharyya, learned Counsel for the appellants, submitted that the plaintiffs were no more entitled to get the benefit from the proviso read with the explanation under Rule 3 Order 23 CPC after the compromise decree had been passed. Since the plaintiffs had discovered the situation long after the decree was passed and no appeal having been preferred, the benefit arising out of Order 43 Rule 1A was not available to his client. Then again the provisions of Section 96(3) bars an appeal. At the same time, no execution having been levied, there was no scope for availing of the benefit either of Section 47 or of Order 21 Rule 101. In
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Ashis Kumar Ghosh And Ors. vs Gopal Chandra Ghosh, Being Dead, ... on 17 March, 2004

such a circumstance, therefore, the suit was the only remedy in view of the principle of ubi jus ubi remedium. Therefore, both the learned Courts below went wrong in dismissing the suit on the ground of maintainability. The question: 4. We have heard the respective Counsel at length. The moot question to be decided is : whether a separate suit could be maintained for setting aside a compromise decree on the ground of fraud, in a circumstance, where there is no remedy that the plaintiff can avail of under the provisions either of Order 23 Rule 3 proviso read with the explanation or under Order 43 Rule 1A or within the scope of Section 47 or Order 21 Rule 101 CPC on account of the fact that the plaintiffs were not parties to the proceedings in which compromise was arrived at. Order 23 Rules 3, 3A : Section 96(3) : Order 43 Rule 1A CPC : 5. The answer is simple. Order 23 Rule 3 proviso restricts the scope of disputing the lawfulness of the compromise at the stage before the compromise is recorded and confines the forum within the same Court including the scope of lawfulness of the agreement. Admittedly, a decree on compromise is in effect an agreement, which estops the parties from challenging the same, an agreement having the seal of the Court binding the parties. Rule 3A, which operates after the compromise is recorded, makes it specifically clear that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Mr. Bhattacharyya's contention is that once the compromise decree is passed and when there is no remedy open, then it is open to file a suit for setting aside of such compromise decree on the ground that the basis of the decree was unlawful. Inasmuch as even after such decree is passed, there is no prohibition, prohibiting any party or person to challenge the lawfulness of the agreement in the same Court including the ground of fraud. 6. Section 96(3) CPC prohibits an appeal from a decree passed on consent of the parties. But Order 43 Rule 1A permits the questioning of the lawfulness of the recording or refusal to record the compromise in appeal. Indirectly it permits appeal even in respect of the cases coming within the purview of Section 96(3). In case such appeal is not preferred, it can still be preferred even after the decree has become final, taking aid of the appropriate remedies or relief as provided in the Limitation Act. 7. The ultimate object of the procedural law is to ensure the smooth process of the litigation. The procedures are handmaid of justice. The procedure prescribes the shortest possible process for reaching a finality. There are certain principles incorporated in the procedural law, which create some right in the parties obtaining the relief providing for finality in the decision. Section 11 CPC provides one such procedure, which brings about finality in the decision. The other finality of a decision is provided for in the provisions prescribed in the Limitation Act. A decision cannot remain open for an indefinite period awaiting finality once it has reached its finality. At the same time, a party is not remediless if the validity of a decision comes in question in a collateral proceeding on the strength of which right is claimed where the validity of the decision can also be gone into in order to ascertain as to whether the decision binds the parties. A decision, which is otherwise void or a nullity, even if it had reached finality, is void and a nullity for all time to come. It does not bind the parties and can be challenged as such in collateral proceedings even on question of fraud or other ground relating to unlawfulness of the agreement. 8. But when the legislature had attempted to confine extension of a litigation from being spread over or spilled over to different forum, the Court cannot interpret such provisions in a manner so as to frustrate the intention of the legislature. The provision for confinement of the forum aims at certain convenience, which are founded on sound principles of jurisprudence. The same Court may have some advantage and the same forum circumscribe the scope of the proceeding instead of undergoing a whole process of a fresh suit. Absence of scope of Order 23 Rules 3, 3A, Order 43 Rule 1A, Section 96(3):
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Ashis Kumar Ghosh And Ors. vs Gopal Chandra Ghosh, Being Dead, ... on 17 March, 2004

9. In the present case, the right was claimed on the strength of an alleged Will purported to be executed by Manmotha Kumar and that too in respect of the two properties out of several of which are accepted by the plaintiffs, seeking to restrain the defendants from proceeding against the third parties with whom no relation or interest of the plaintiff has been established. The alleged Will is to take effect after the demise of the testator, even if the Will was purported to have been executed before the compromise. The persons claiming through the alleged Will purported to be executed by the testator are claiming through the testator, party to the compromise. Therefore, plaintiffs cannot claim to be a stranger. Section 11 CPC restricts re-opening of the case in between the parties or between the parties claiming through the parties to the suit. Therefore, nothing prevented the plaintiffs to take steps within the forum as provided in CPC within the time. However, absence of knowledge having been pleaded, it was open to the plaintiffs to establish their right taking aid of the provisions contained in the Limitation Act. The decision in Suraj Kumari (supra) has no manner of application in the present case, inasmuch as in the said case, it was held that a person coming to the Court with unclean hands is not entitled to any relief. It does not help Mr. Bhattacharyya inasmuch as in the said decision, it was held that Order 23 Rule 3A is not applicable to a stranger to challenge the compromise decree. Therefore, the suit by a stranger to set aside a compromise decree on the ground that compromise was not lawful was held to be maintainable. In the present case, we have already observed that the plaintiff was not a stranger to the compromise decree since the plaintiffs were claiming through Manmotha Kumar Ghosh who was a party to the compromise. The decision in Gosto Behari Pramanik (supra) also does not help in the present case, which, in fact, did not notice the distinction in the various provisions as discussed above. 10. For the reasons we have already discussed, we are unable to agree to the proposition in view of the fact that the explanation to Rule 3 makes it clear that the question of lawfulness of the foundation for the compromise between the parties can also be gone into by the Court to which the forum is confined. Fraud makes the contract void in terms of the Contract Act. Lawfulness covers both void and voidable agreement. Therefore, this question of fraud cannot be outside the scope of the litigation provided in the forum. In Banowarilal (supra) cited by Mr. Mukherjee, the Apex Court had dealt with the matter in details as hereinafter : "6. The experience of the Courts has been that on many occasions parties having filed petitions of compromise on basis of which decrees are prepared later for one reason or other challenge the validity of such compromise. For setting aside such decrees suits used to be filed which dragged on for years including appeals to different Courts. Keeping in view the predicament of the Courts and the public, several amendments have been introduced in Order 23 of the Code which contain provisions relating to withdrawal and adjustment of suit by Civil Procedure Code (Amendment) Act, 1976. ............. Rule 3 of Order 23 which contained the procedure regarding compromise of the suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree. Not only in Rule 3 some special requirements were introduced before a compromise is recorded by the Court including that the lawful agreement or a compromise must be in writing and signed by the parties, a proviso with an explanation was also added which is as follows ; 'Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation.--An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule'. 7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning
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Ashis Kumar Ghosh And Ors. vs Gopal Chandra Ghosh, Being Dead, ... on 17 March, 2004

of the said rule. Having introduced the proviso along with the explanation in Rule 3 in order to avoid maintainability of suit and prolonged litigation, a specific bar was prescribed Rule 3A in respect of a separate suit for setting aside a decree on basis of a compromise saying : '3A. Bar to suit.--No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.' 8. Earlier under Order 43, Rule 1(m), an appeal was maintainable against an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. But by the amending Act aforesaid that clause has been deleted; the result whereof is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise under Rule 3 of Order 23. Being conscious that the right of appeal against the order recording a compromise or refusing to record a compromise was being taken away, a new Rule 1A has been added to Order 43 which is as follows : 1A. Right to challenge non-appealable orders in appeal against decrees.-(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. 9. Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with consent of the parties. Rule 1A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order 43, Rule 1(m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be filed for setting aside such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such a right has been given under Rule 1A(2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute". 11. Following this decision by a learned Single Judge of this Court deciding the case of Gosto Behari Pramanik (supra) sitting singly and following the decision in Banowarilal (supra) had held that such a suit cannot be maintained. The decision in S.M. Seeni (supra) a very short judgment had taken the same view while the decision in Jnanendra Chandra Nath (supra) even before the Supreme Court decision, had adopted the view we have taken. 12. Thus, having regard to the facts and circumstances of the case, we do not find any infirmity in the judgment of affirmance appealed against. This appeal, therefore, fails and is accordingly dismissed.
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Ashis Kumar Ghosh And Ors. vs Gopal Chandra Ghosh, Being Dead, ... on 17 March, 2004

R.N. Sinha, J. 13. I agree.

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