Order 23 Rule 3 CPC | Vitiated Compromise Decree Can Be Recalled By Same Court, Separate Suit Challenging Such Decree Is Barred: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court on Wednesday observed that a compromise deed is essentially a contract between the parties superimposed by the decree of the Court and such a decree can be avoided only by approaching the same Court and demonstrating before it that the compromise on the basis of which decree is passed is not lawful.

The Observation was laid by a bench comprising Justice Sanjeev Kumar while hearing a plea through the the medium of which the petitioner had invoked the extraordinary writ jurisdiction under Article 226 of the Constitution of India seeking issuance of a writ of certiorari to quash judgment and decree passed by the Court of Munsiff (Additional Special Mobile Magistrate), Beerwah. The petitioner also sought quashment of execution petition filed before the trial Court for executing the impugned judgment and decree.

After perusing the record the court found that while a civil suit for permanent prohibitory injunction filed by the respondents against the petitioner was pending adjudication in the trial Court, the parties entered into a compromise, hope u which was reduced in writing in terms of deed executed on 25th October, 2019 and on the basis of this compromise deed and after recording statements of both the parties, the trial Court had passed a compromise decree dated 13.11.2019. The decree was accepted by all the parties including the petitioner herein.

Record also revealed that t was only in October 2021, almost three years after passing of the decree, the petitioner moved the trial Court by filing an application under Order 23 Rule 3 of the Code of Civil Procedure praying for recalling of the compromise deed dated 13.11.2019 on the ground that the same had been obtained by the respondents by putting the petitioner under coercion. The application was considered by the trial Court and vide order dated 20th July, 2022 the same was dismissed. It was this order passed by the trial Court as also the pending execution proceedings, which are called in question in the writ petition. Additionally the petitioner also sought quashment of the compromise decree dated 13.11.2019.

Adjudicating upon the matter Justice Kumar observed that the instant petition at its very threshold is non maintainable as the extraordinary writ jurisdiction of this Court vested by Article 226 of the Constitution of India cannot be invoked to challenge the judicial orders passed by the Civil Courts. Stating so the bench placed firm reliance on the view by a Three-Judge Bench judgment of Hon‟ble the Supreme Court in Radhey Shyam and another v. Chhabi Nath and others(2015).

Discussing the Law applicable to the matter at hand the bench noted that in view of the explanation appended to Rule 3 of Order 23, an agreement or compromise which is void or voidable under the Contract Act shall not be deemed to be "lawful‟ within the meaning of Rule. A compromise decree which is vitiated by fraud, coercion or misrepresentation, undue influence or mistake can be recalled by the same Court under proviso to Rule 3 of Order 23 and separate suit to challenge such decree is clearly barred by Rule 3A of Order 23 CPC, the court underscored.

Buttressing the said position of law the bench found it worthwhile to record the observations of Supreme Court in R. Jankiammal v. S. K. Kumarasamy, (2021),

"A conjoint reading of Sections 10, 13 and 14 of the Contract Act indicates that when consent is obtained by coercion, undue influence, fraud, misrepresentation or mistake, such consent is not free consent and the contract becomes voidable at the option of the party whose consent was caused due to coercion, fraud or misrepresentation. An agreement, which is void or voidable under the Indian Contract Act, shall not be deemed to be lawful as is provided by Explanation to Rule 3 of Order 23."

Dealing with the contention of the respondent that the remedy of the petitioner to challenge the compromise decree on the ground of coercion was by way of separate suit, the bench observed that the compromise deed is essentially a contract between the parties superimposed by the decree of the Court. Such decree can be avoided only by approaching the same Court and demonstrating before it that the compromise on the basis of which decree is passed is not lawful and accordingly the contention urged by the respondent becomes untenable.

Applying the said law the bench noted that it is true that the impugned judgment and decree is not appealable and the remedy to recall a compromise decree obtained by fraud, coercion or undue influence is provided under Order-23 Rule-3 of the Code of Civil Procedure but as is rightly observed by the trial Court, the writ petitioner has failed to make out a case for recalling of the decree.

Accordingly the bench dismissed the petition.

Case Title : Abdul Majeed Ganai Vs Abdul Rahim Bhat & Another

Citation : 2022 LiveLaw (JKL) 155

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