Sneh Gupta v Devi Swarup and Ors 2009

Shruti Srivastava

Bench: S.B. Sinha, Mukundakam Sharma
Citations: 2009 6 SCC 194

1. Code of Civil Procedure (CPC)Order 23 Rule 1, Order 23 Rule 3; Constitution of India, Article 227; Two suits were filed, one for decree for a declaration that Raghubir Singh was only having a life interest in the suit property and having not abided the terms and conditions contained in the Will dated 27.3.1943, has lost his right to manage the property in suit.
2. And another against an order of mutation carried out in the Revenue records pursuant to or in furtherance of a transfer made by Raghubir Singh in favour of his wife and son stated to be under an oral gift deed representing himself as the successor of Bhanumal.
3. Title Suit: No.185 questioning mutation was decreed by trial court.
4. Compromise in appeal and suit allowed to be withdrawn.
5. Appellant filed application before appellate court questioning compromise.
6. Compromise decree set aside being illegal and null and void.

ISSUE:
● Applications under Article 227 was allowed by High Court -- Whether calls
for interference?
● Whether prior to acceptance of the said compromise, it was obligatory on the part of the learned Judge to issue notice upon the appellant and others who derived benefit under the said judgment and decree passed in Suit No.185 of 1989?

SIGNIFICANCE:
● If a suit is to be decreed or dismissed based on a compromise, even permission to withdraw the suit pursuant thereto, order XXIII Rule 1 of the Code may not have any application
● Even in such a case, a permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit
● In the present situations not only the properties were different, the nature of
the litigations were also different, Even the parties were different Both the
compromise petitions do not refer to each other.
● If the parties knew the thereabout, it is beyond anybody’s comprehension as to why signature of all the parties were not obtained for the purpose, if not for any other reason, but to satisfy the requirements of law.
● Appeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999 were pending before different courts and in that view of the matter it is difficult to agree with the High Court that only for that purpose, the date in the appeal was preponed.
● Even otherwise, in law, they are not members of the same family, they have been inherited definite share from their predecessors there is no presumption that only because two lawyers are practicing from the same chamber, they would breach their confidentiality or commit some act which would amount to professional misconduct.
● Only because two compromise petitions were filed on the same day or Veena was a party to both, it would not by itself lead to any inference that appellant also knew about the second compromise through her counsel.
● If the hearing of a case is preponed, it should be done with notice to all the parties. It is not the case of the first respondent that notice had been given to all the parties or otherwise also they were aware thereof.
● In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting
aside the decree no merit in this appeal. The same is dismissed accordingly;

QUESTIONS RAISED:
1. If the compromise has been accepted in absence of all the parties, the same would be void - But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside - the copy of the plaintiff was not annexed with the summons- Summons was served after the date fixed in the suit expired.
2. The Court had in that situation under a legal obligation to serve another summons fixing another date of hearing in terms of Order V, Rule 2 of the Code of Civil Procedure.
3. The compromise decree, as indicated hereinbefore, even if void was required to be set aside - A consent decree, is well known, as a contested decree - Such a decree must be set aside if it has been passed in violation of law.
4. For the said purpose, the provisions contained in the Limitation Act,1963 would be applicable -- It is not the law that where the decree is void, no period of limitation shall be attracted at all -- Even otherwise, any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier – no application for condonation of delay has been filed
5. Two more applications for recall of the order dated 6.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay.

JUDGEMENT:
1. The High Court has arrived at a finding of fact that the appellant cannot be said to have acquired knowledge about the passing of the decree on 7.2.2002, stating "... If the said compromise deed dated 24.4.1998 was passed by preponing the appeal fixed in July 1998 her counsel Shri Lalit Gupta could have come to know in July 1998 itself which was the original date fixed in this appeal that this appeal was preponed and compromise decree was passed on 25.4.1998. He could have informed Smt. Sneh Gupta Respondent immediately thereafter. No reasons have been given by Shri Lalit Gupta for not deriving the knowledge of order dated 25.4.1998 in July 1998 when the file was originally fixed and when he was supposed to appear in the Appellate Court. He has also not given the reasons why he did not inform his party after coming to know in July 1998 that the said appeal was preponed to 25.4.1998 and was decided as compromised."
2. Supreme Court held: we do not think that any error has been committed by the High court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 6-11-2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. (Dipak Chandra Ruhidas v Chandan Kumar Sarkar 2003 7 SCC 66 and Sayeeda Akhtar v. Abdul Ahad. 2003 7 SCC) For the reasons, there is no merit in this appeal. The same is dismissed accordingly.