Disposed

Sou. Shobha Ramchandra Kamble v. Ramchandra Laxman Kamble

Bombay HC15 Oct 2012WP/1931/2012

Case brief

AI extract

What is this about?

This writ petition challenges the rejection of an application for condonation of delay to appeal a consent decree dismissing a Section 125 maintenance claim. The High Court held that appeals against consent decrees are not maintainable under CPC Section 96(3), but allowed the petitioner liberty to approach the court that recorded the mediation compromise to apply for setting it aside.

What did the court decide?

Rule disposed with liberty to the petitioner to approach the court passing the compromise decree with notice to the respondent.

Sou. Shobha Ramchandra Kamble Vs Ramchandra Laxman… — Matrimonial and Divorce | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1931 OF 2012

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Sou Shobha Ramchandra Kamble : Petitioner. Versus Ramchandra Laxman Kamble : Respondent.

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Mr. Nagesh Y Chavan for the Petitioner. Mr. Suhas Anant Kulkarni for the Respondent.

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CORAM : R. M. SAVANT, J. DATE : 15^th October 2012

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ORAL ORDER

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1 Rule, with the consent of the parties made returnable forthwith

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and heard.

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2 The Writ Jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 21/11/2011 passed by the learned District Judge4, Sangli by which order the Application for condonation of delay of 142 days ( wrongly mentioned as 46 days in the Application) came to be rejected.

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3 The said rejection is on the ground that an Appeal against a consent decree would not lie in terms of Section 96(3) of the Code of Civil Procedure; and secondly that in view of Section 21(2) of the Legal Service

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Authorities Act a compromise arrived at in the process of mediation partakes the character of a compromise decree,and therefore an Appeal would not lie.

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4 The facts involved in the present case are that the Hindu Marriage Petition being 48 of 2009 was filed by the Petitioner herein against the Respondent for divorce. It appears that the Petitioner had also filed an Application under Section 125 of the Criminal Procedure Code for maintenance in the Court of Judicial Magistrate First Class Vadgaon. The said HMP filed by the Petitioner was referred to mediation by the concerned Court. In the course of mediation, the parties arrived at a compromise which was put down in the writing executed on 27/10/2010 which was signed by the Respondent, and thumb impression affixed by the Petitioner and signed by the advocates. In terms of the said compromise the marriage between the Petitioner and the Respondent was annulled. The said compromise recorded that the Petitioner gives up her right to maintenance and property. The Petitioner giving up her right to maintenance and property are mentioned in the last three lines of the said writing executed on 27/10/2010. the concerned court passed a decree in terms of the said compromise, and the proceedings accordingly came to be disposed of.

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5 It appears that when the application for maintenance filed under Section 125 of the Criminal Procedure Code came up before the Criminal

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Court, the Respondent herein contended that the Petitioner cannot claim maintenance in view of the fact that she has given up her right to maintenance in the compromise which was arrived at on 27/10/2010. According to the Petitioner, it was for the first time, she came to known that apart from the annulment of the marriage, the compromise terms included Petitioner giving up her right to the maintenance and property. It is the case of the Petitioner that a fraud was played upon her by inclusion of the last three lines in the writing dated 27/10/2010, as she had never agreed to giving up her right to maintenance and property. The Petitioner therefore sought to challenge the compromise decree passed in the said Hindu Marriage Petition on the ground of fraud. Since the Appeal was belated the Petitioner filed an application for condonation of delay. The said application mentions the reasons as to why the said delay has occasioned. The reasons being that the Petitioner is suffering from tuberculosis and spinal cord ailment, and in view of the fraud placed by the other side, she had sought condonation of delay of 142 days.

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6 The said application as indicated above has been rejected by the Lower Appellate Court on the twin grounds which have been adverted to in the earlier part of this order.

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7 The position in law in so far as maintainability of an Appeal against the compromise or consent decree is well settled. A useful reference

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could be made to the judgment of the Apex Court cited on behalf of the Respondent which is reported in AIR 2006 SC 2628 in the case of Pushpa Devi Bhagat (D) by LR v/s. Rajinder Singh & ors . The Apex Court on the consideration of the relevant provision including the amendments which have been introduced in the Code of Civil Procedure and especially Section 23 thereof, held that 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 the 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. Para 11 and 12 of the said report is material and are reproduced herein under :

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“11. Section 96 provides for appeals from original decrees. Subsection (3) of section 96, however, provided that no appeal shall lie from a decree passed by the court with the consent of the parties. We may notice here that Order 43 Rule 1 (m) of CPC had earlier provided for an appeal against the order under Rule 3 Order 23 recording or refusing to record an agreement, compromise or satisfaction. But clause (m) of Rule 1 Order 43 was omitted by Act 104 of 1976 with effect from 1.2.1977. Simultaneously, a proviso was added to Rule 3 Order 23 with effect from 1.2.1977. We extract below the relevant portion of the said proviso :

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"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....."

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Rule 3A was also added in Order 23 with effect from 1.2.1977 barring any suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful.”

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“12. The position that emerges from the amended provisions of Order 23, can be summed up thus :

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(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.

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(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.

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(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.

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(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.

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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

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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.

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Re : Point No. (ii)”

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8 In view of the well settled position in law as aforesaid, the Appeal filed by the Petitioner herein is not maintainable. Hence the application for condonation of delay filed in a proceeding which is not maintainable would also not be maintainable. The learned Judge of the Lower Appellate Court has therefore rightly rejected the said application for condonation of delay. One of the grounds being that the Appeal was not maintainable against a consent decree. However, the Petitioner cannot be rendered remedyless and would have to be given an opportunity to prosecute the remedy available at law. Hence though the Appeal is not maintainable, the Petitioner would be entitled to approach the concerned Court which passed the compromise decree. If such an application is made the concerned court would consider the same on its own merits and in accordance with law, including whether the application was maintainable in the light of the subsequent events which have transpired and which have been mentioned in the affidavit in reply filed on behalf of the Respondent. If such an application is filed before the concerned court, notice of the same be given to the Respondent well in advance. Hence though no

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interference is called for with the impugned order, but with the liberty as aforesaid, the Rule in the above Writ Petition to stand disposed of with parties to bear their respective costs.

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[R.M.SAVANT, J]

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Sou. Shobha Ramchandra Kamble v. Ramchandra Laxman Kamble

Case brief

What is this about?

What did the court decide?

Sou. Shobha Ramchandra Kamble v. Ramchandra Laxman Kamble

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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