Final Order 12

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 27RCA SCJ 8/21
PRIYANKA YADAV Vs. RAM DARSH YADAV AND ORS.
16.04.2024
Present: Sh. Aditya Kaushik , Ld. Counsel for appellant VC.
Sh. Shubham, Ld. Counsel for respondent through VC.
Case law in support of maintainability of appeal not filed by
Ld. Counsel for appellant.
Arguments on maintainability heard.
Put up for orders at 4.00 PM.
SWATI GUPTA-I
JSCC/ASCJ/GJ/PHC
New Delhi/16.04.2024
At 4.00 PM.
Present: None.
Arguments heard. Record perused and considered.
Present appeal has been filed by the appellant against order
dated 27.08.2021 passed in CS/SCJ No. 608/21. By way of the said order
dated 27.08.2021, suit bearing No. CS/SCJ No. 608/21 titled as Ram
Darsh & Anr. Vs. Rakesh Kumar Yadav & Anr. was disposed off as
compromised and consent decree was prepared to the effect that “both
the defendants are restrained from interferreing in the peaceful
possession of the suit property bearing No. RZ-100/284 and 101/284,
Gali No. 2, Geetanjali Park, West Sagarpur, New Delhi in possession of
plaintiff”.
The appellant herein was defendant No. 2 in the aforesaid
suit and the respondent No. 1 and 2 were the plaintiffs in the aforesaid
Contd....
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suit. Interestingly, defendant No. 1 has not been impleaded in the appeal.
Appellant has assailed the oder dated 27.08.2021 inter alia on the
ground that the same was passed on the basis of misleading statements;
same was passed without territorial jurisdiction; suit was filed in
collusion between plaintiffs and defendant No. 1; appellant has legal
right to reside in the matrimonial home, etc.
Without going into the merits of the case, it must be noted that
vide order dated 27.08.2021, consent decree was passed on the basis of
statement of plaintiff (respondent No. 1 herein), defendant No. 1 (not
impleaded in appeal) and defendant No. 2 (appellant herein). Section 96
(3) CPC clearly states that no appeal shall lie from a decree passed by
the Court with the consent of the parties. In this regard, Hon'ble Supreme
Court has also held in the case of Pushpa Devi Bhagat (dead) through
LR vs. Rajinder Singh & Ors. reported in (2006) 5 SCC 566, that the
only remedy available to a party to consent decree to avoid such consent
decree, is to approach the Court which recorded the compromise and
made a decree in terms of the compromise. It has been specifically held
in the said judgment that no appeal is maintainable against the consent
decree having regard to specific bar contained in Section 96 (3) CPC and
that a consent decree operates as an estoppel and is binding unless it is
set aside by the Court which passed the consent decree, by an order on
application under the proviso to Rule 3 Order 23 CPC.
Further, the aforesaid judgment has been reiterated and relied upon
by the Hon'ble Supreme Court of India in the recent case of M/s Sree
Surya Developers and Promotors Vs. N. Sailesh Prasad & Ors.
passed in CA No. 439/2022, dated 09.02.2022 wherein also it has been
Contd....
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held that a party to a consent decree based on compromise has to
approach the same Court which recorded the compromise, in order to
challenge the compromise decree on the ground that it was not lawful.
In view of the aforesaid, settled legal position in my
considered opinion the present appeal against the consent decree dated
27.08.2021 is not maintainable. Same is accordingly, dismissed.
Original documents, if any, be returned to the rightful
claimant against due acknowledgment after cancellation of endorsement,
if any and after receipt of their certified copies on record.
File be consigned to the record room after due compliance.
TCR be returned to the Trial Court.
SWATI GUPTA-I
JSCC/ASCJ/GJ/PHC
New Delhi/16.04.2024
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