JUDGMENT
Vinod K. Sharma, J.
1. This revision petition has been filed against the order passed by the learned Additional Civil Judge (Senior Division), Rewari dismissing the application moved by the petitioners herein for dismissal of the suit filed on behalf of the plaintiff-respondents.
2. It was claimed in the application that the suit filed by the plaintiff-respondents was barred under Order 23 Rule 3-A of the Code of Civil Procedure (for short the Code).
3. The plaintiff-respondents filed a suit challenging compromise decrees dated 4.8.1987 claiming the said decrees to be illegal, null and void and not binding on the rights of the plaintiffs. The application was opposed on the plea that bar under Order 23 Rule 3-A was not applicable to the facts of the present case.
4. The learned trial Court interpreted the provisions of Order 23 Rule 3-A and came to the conclusion that the word ‘not lawful’ contained in Rule 3-A is required to be construed only after letting the parties to lead evidence and contest their case. The learned court by observing that the mother had no right to relinquish the rights of minor, came to the conclusion that as the decree was not challenged merely on the ground that compromise being not good, but also not on another ground i.e. competence of the mother to enter into compromise, the suit was competent.
5. Learned Counsel for the petitioners challenges the said order primarily on the plea that Order 23 Rule 3-A of the Code completely bars the filing of fresh suit to challenge a compromise decree. Order 23 Rule 3-A reads as under:
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.
6. Learned Counsel for the petitioners has placed reliance on a Division Bench judgment of this Court in the case of Wassan Singh and Ors. v. Lakha Singh and Anr. wherein the Division Bench of this Court has been pleased to lay down as under:
11. It is thus apparent that in view of introduction of Rule 3 A in the year 1976, the challenge to the compromise can be entertained by the Court passing the aforesaid compromise order and not through separate proceedings in a civil suit. The various judgments relied upon by the learned Counsel for the applicants are prior to the aforesaid amendment.
12. To be fair to the learned Counsel we may notice a judgment relied upon by him in Ram Kishan and Ors. v. Sardari Devi and Ors. 2003 (1) Civil Court Cases 11. In the aforesaid judgment it was noticed by this Court that the suit challenging a compromise decree on the ground that it was obtained by misrepresentation and fraud was maintainable. However, the said judgment has nowhere laid down the court is debarred from exercising its inherent jurisdiction to set aside a compromise decree obtained by a party by playing fraud, coercion or under influence. In fact, the learned Single Judge in Ram Kishan’s case (supra) has relied upon the observations made by a Division Bench of this Court to hold that a separate suit was maintainable. The aforesaid observations of Division Bench of this Court to hold that a separate suit was maintainable. The aforesaid observation of Division Bench may be noticed as follows:
The words “not lawful” occurring in Rule 3-A of Order 23 of the Code have wider content than similar words in the Explanation to Rule 3. The Explanation to Rule 3 deals with agreements or compromises which are not to be deemed to be lawful if they are void or avoidable under the Indian Contract Act, 1972, but the agreements or compromises which are not lawful as referred to in Rule 3-A are more general in terms and are not engrafted by the limitations as inserted in the Explanation appended to Rule 3. If the agreement or compromise if not the result of consensus of mind of two persons in regard to certain matters, viz. When the consent of one of them to the forms is obtained by the other by some illegal means, namely, by fraud, coercion or undue influence, there is in fact no compromise. Rule 3-A does not bar the maintainability of the said challenging the compromise on these grounds. However, the court can in exercise of its inherent jurisdiction also relieve the party alleging fraud coercion or under influence of the agreement. Question No. 12 is answered accordingly.
7. Hon’ble Supreme Court in the case of Pushpa Devi Bhagat (D) Th. LR. Smt. Sadhna Rai v. Rajinder Singh has also been pleased to lay down that no fresh suit to challenge compromise decree is competent. Para No. 12 of the said judgment reads under:
12. 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) C.P.C.
(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 3 A.
(iv) A consent decree 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.
14. 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 21.8.2001 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 27.8.2001), 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.
8. In view of the authoritative pronouncement of Hon’ble Supreme Court the judgment relied upon by the respondent i.e. Banwari Lal v. Smt. Chando Devi (Through L.R.) 1993 (3) R.R.R. 685 can be said, to be laying down good law.
9. Consequently, the revision is allowed.
10. The impugned order is set aside. The application moved by the petitioners under Order 23 Rule 3-A of the Code is allowed. However, dismissal of suit will not bar the respondents to move the same court for recall of the judgment and decree in accordance with law, if any case is made out to challenge the same in accordance with law.