Rakesh Kumar Jain, J.:— Defendants are in second appeal against the judgment and decree of both the Courts below whereby suit of the plaintiffs was decreed and judgment and decree dated 13.12.1986 passed in Civil Suit No. 399 of 1986 titled as “Tara Chand v. Asha Ram” was held to be illegal, null and void having been passed against the dead person and consequent mutation bearing No. 2441 dated 25.8.1987 sanctioned on the basis of the decree dated 13.12.1986 in favour of defendant No. 1 Mahinder Singh, Tara Singh father of Defendant No. 1 to 6 was also held to be illegal, null and void. Sale deed executed in favour of defendant Nos. 7, 8 & 9 and mutation No. 2776 dated 23.11.1996 sanctioned on the basis of sale deed in favour of defendants No. 7, 8 and 10 and the mutation of inheritance bearing No. 2794 dated 20.8.1997 sanctioned on the basis of decree dated 13.12.1986 including all other sale deeds, mutation having effect on the basis of said decree in favour of any other person was held to be illegal, null and void as defendant No. 1 Mahinder Singh and Tara Chand father of defendant Nos. 1 to 6 were not held to be competent to alienate the suit land. The defendants were also restrained from alienating or creating any charge over the suit land and the plaintiffs were held entitled to get the possession of the suit land from the defendants being the owners as the father of the plaintiffs, namely, Asha Ram was the owner in possession of the land measuring 58 kanal 14 marla as per Jamabandi for the year 1970-1971 and accordingly the defendants were directed to handover the vacant physical possession of the suit land to the plaintiffs within a period of three months from the date of passing of the judgment and decree of the trial Court.
2. The plaintiffs case, in brief, is that the plaintiffs and defendants No. 12 to 15 are owners of agricultural land measuring 58 kanals 14 marlas situated within the Revenue Estate of Village Rajpur, Tehsil Gannaur, District Sonepat. Defendant No. 1 Tara Chand father of defendant Nos. 2 to 6 belongs to the same family being collaterals whereas Tara Chand is the brother-in-law of Asha Ram, who died about 30 years ago i.e on 7.8.1965 but due to inadvertence, Asha Ram's name continued to appear in the Revenue record. Defendant No. 1 Tara Chand obtained a fraudulent decree in respect of the suit land by filing a Civil Suit No. 399 of 1986 against Asha Ram from the Court of Ms. Aruna Goel, the then Sub Judge, Sonepat on 13.12.1986 and on the basis of said decree got a mutation No. 2441 sanctioned on 25.8.1987 Later on defendants No. 13 filed a Civil Suit for declaration in the year 1986 but got it withdrawn in collusion with defendants No. 1 to 6 without the knowledge of the plaintiffs. The plaintiffs, when came to know about the impugned judgment decree dated 13.12.1986, which is allegedly obtained by defendants No. 1 and Tara Chand practicing fraud upon Asha Ram, who had already expired further sold the suit land measuring 8 kanals in favour of defendants No. 7 to 10 by virtue of illegal sale deed dated 30.10.1986 and sold 24 kanals of land out of suit land to defendant No. 11.
3. In the written statement, filed by defendant No. 1, besides taking preliminary objections with regard to maintainability, locus standi, cause of action etc. on the part of the plaintiffs was contested on merits that defendants No. 2 to 3 have become owners of the suit land pursuance to the decree dated 13.12.1986 and had legal right to execute the sale deed in respect of the land in question.
4. In the written statement filed by defendant No. 2, it was alleged that defendant No. 1 and Tara Chand father of defendant No. 2 to 6 had obtained judgment and decree dated 13.12.1986 fraudulently because Asha Ram had already expired in the year 1965.
5. Defendants No. 7 to 10 filed their separate written statement, who alleged that defendant No. 1 and father of defendant No. 6 were rightly recorded as owners in possession of the suit land, however, it was admitted that Asha Ram brother-in-law of Tara Chand had expired 33 years back. It was claimed that they have purchased the land comprising in Killa No. 8/1 vide sale deed dated 30.10.1996 and are the owners in possession over the suit property. Defendants No. 3 to 6, 11 and 13 to 15 were proceeded against ex parte whereas defendant No. 12 had expired.
6. No replication was filed. On the pleadings of the parties, following issues were struck on 14.9.2007/18.12.2007:
“1. Whether the plaintiffs are entitled to get the possession of the suit land as described in the decree dated 13.12.1986 and the judgment passed therein on the same day and the subsequent mutations sanctioned on the basis of the decree and further sale deed executed in favour of defendant Nos. 7 to Won 30.10.1986 are also liable to be set aside, as the decree was obtained by fraud? OPP.
2. Whether the defendant have no right to alienate the suit land in any manner? OPP
3. Whether the suit of the plaintiffs is not maintainable in the present formb? OPD.
4. Whether the plaintiffs have no cause of action to file the present Suit? OPD
5. Whether the plaintiffs have no locus standi to file the present suit? OPD.
6. Relief
7. Plaintiffs examined Randhir Singh as PW-1 and Ramesh Chander as PW-2, besides, leading documentary. Whereas, defendants examined Ram Chander as DW-1, Jai Bhagwan as DW-2 and Pawan Kumar as DW-3. No evidence was led by the plaintiffs in rebuttal.
8. The trial Court decreed the suit of the plaintiffs on 7.1.2008 and the First Appellate Court dismissed the appeal of the defendants on 30.4.2008 observing that “it is quite apparent on the record that judgment and decree dated 13.12.1996 (Ex.P1) qua land in question was obtained by Tara Chand and Mohinder Singh by applying fraudulent means as at the relevant time i.e at the time of institution of Civil Suit No. 399 of 1986 titled “Tara Chand v. Asha Ram” the then defendant Asha Ram had already expired on 7.8.1986, thus, above said judgment and decree obtained against dead person being illegal, null an void did not confer any right, title or interest in respect of suit property in favour of Tara Chand and Mohinder Singh and consequently, they had no right or title to alienate the suit property in any manner whatsoever. Resultantly, sale deed of suit land measuring 8 kanals effected vide registered sale deed No. 1271 dated 30.10.1996 by said Tara Chand and Mohinder Singh in favour of defendant Nos. 7 to 10 is also illegal null and void and does not confer any right, title or interest in respect of said property in favour of above said defendant No. 1 Mohinder Singh in favour of defendant No. 11 does not confer any right or title in respect of said property in favour of defendant No. 11. Plaintiffs as well as defendant Nos. 12 to 15 being LRs of deceased Asha Ram are owners of suit land and they are well entitled to get possession of suit land from defendant No. 1 to 11. Keeping in view fraudulent decree passed on 13.12.1986 and the fact that Tara Chand and Mohinder Singh had sold the land in question vide plaintiffs on 17.11.1997 on the basis of their title in the suit property is well within limitation. In this view of the matter learned trial court has rightly decreed the claim of the plaintiffs”.
9. Still aggrieved, the defendants have come up in second appeal in which, the only argument raised by counsel for the appellant is that in view of the Order 23 Rule 3-A of the Code of Civil Procedure, 1908 (for short ‘CPC’) the suit filed by the plaintiff was not maintainable as no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. It is submitted that impugned decree dated 13.12.1986 was suffered by Asha Ram in favour of Tara Chand son of Sheesh Ram and Mohinder Singh son of Tara Chand, by virtue of a compromise and if the plaintiffs had any grievance against the same, then the only remedy available to them was to approach the Court, which recorded the compromise and prepared a decree but an independent suit was not maintainable.
10. In this regard, learned counsel for the appellant has relied upon two decisions of this Court in the case of “Moorti D/o Kaka Singh v. Kaur Singh” 2008 (4) RCR (Civil) 592 : 2008 (2) R.C.R (Rent) 394 : 2008 (3) SLJ (P&H) 1521 and “Shanti Devi (Dead) represented by LR v. Gian Chand”, 2008 (1) RCR (Civil) 658 : 2008 (1) All India Land Laws Reporter 258.
11. In reply, learned counsel for the respondents has argued that neither the provisions of Order 23 Rule 3-A CPC are applicable nor the ratio of law laid down in the aforesaid two decisions to the facts of this case because decree obtained in Civil Suit No. 399/86 on 13.12.1986 is not based upon a compromise but is a consent decree in terms of Order 12 Rule 6 of CPC. It is further submitted that even otherwise, decree obtained by the appellants is based upon fraud, which can always be challenged by a separate suit. In this regard, learned counsel for the respondents has relied upon a decision of the Supreme Court in the case of “A.V Papayya Sastry v. Govt. of A.P”, 2007 (2) RCR (Civil) 431 : 2007 (2) R.A.J 451 : 2007 (4) Supreme Court Cases 221.
12. I have heard, both, counsel for the parties and have examined the available record. The question of law that has been framed by the learned counsel for the appellants is based upon Order 23 Rule 3-A CPC about the maintainability of a separate suit in order to challenge a compromise decree.
13. Whereas, the arguments raised by the counsel for the respondents is that the impugned decree dated 13.12.1986 is not a compromise decree but a consent decree, which is passed under Order 12 Rule 6 of the CPC to which the provisions of Order 23 Rule 3-A will not be applicable.
14. In order to examine the rival contentions of both the learned counsel for the parties, it would be relevant to refer to provisions of Order 23 Rule 3-A CPC and Order 12 Rule 6 CPC.
15. Order 23 Rule 3 CPC and Order 23 Rule 3-A is reproduced as under:—
“Order 23 Rule 3: Compromise of Suit: Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]:
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; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
“Order 23 Rule 3-A:— 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.”
Order 12 Rule 6 CPC is reproduced as under:—
“Judgment on admissions: (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”
16. According to the Order 23 Rule 3 CPC, the Court is vested with a power to decree a suit on the basis of a lawful agreement or compromise, which is in writing and signed by the parties whereas Order 23 Rule 3-A debars a separate suit to challenge the said decree, which has been suffered on the ground of compromise that it was not lawful. There is no quarrel with the law laid down by this Court while interpreting Order 23 Rule 3-A in the case of Shanti Devi (dead) represented by LR (Supra) and Moorti D/o Kaka Singh (Supra) that independent suit is not maintainable for setting aside a compromise decree on the ground that a compromise was not lawful in view of the bar contained in Order 23 Rule 3-A and the only remedy available to a party to challenge such a decree is to approach the Court which recorded the compromise and made a decree in terms of it, by establishing that there was no such compromise much less lawful.
17. However, in the present case so far as the impugned judgment and decree is concerned, it is not a compromise decree because no compromise in writing and signed by the parties has been placed on record, which could form part of the decree rather in the suit, which was filed by Tara Chand and Mohinder Singh, a consent written statement was filed on behalf of Asha Ram on 15.11.1986, who had admitted that the averments made in the plaint is correct and had suffered a statement on 17.11.1986 to the effect that “stated that suit filed by the plaintiff is correct and is admitted. It may be decreed. The cost may be ordered to be borne by the parties”.
18. The learned Sub Judge, Second Class, Sonepat passed the following judgment on 13.12.1986:
“In view of the written statement and the statement of the parties, I hereby decree of the suit of the plaintiffs and pass a decree of declaration to the effect that plaintiffs are owners in possession in equal shares of suit land measuring 58 kanals 14 marlas, situate in Village Rajpur, Tehsil Ganaur, District Sonepat, detailed in para No. 1 of the plaint. In the circumstances, the parties are left to bear their own costs. Decree sheet be prepared and file be sent to the records.”
19. On the basis of aforesaid judgment, the decree was prepared as under:—
“It is ordered that the suit of the plaintiffs in which they claim their shares is decreed leaving the parties to bear their own costs.”
20. Thus, the impugned judgment is not a compromise decree but a consent decree to which provisions of Order 12 Rule 6 of CPC would apply wherein, it is provided that where an admission of fact has been made either in the pleadings or otherwise, whether oral or in writing, the Court at any stage or suit, either on in the application or of its own motion without waiting for the determination of any other question between the parties can make such an order or give such judgment as it may think fit having regard to such admissions.
21. The object of the aforesaid Rule is to enable for a party to obtain speedy judgment at least to the extent of their relief to which according to the admission of the defendant, the plaintiff is entitled. The rule is wide enough to cover even the oral admissions.
22. In view of the above discussion, it is to be understood that there could be various types of decrees, namely, contest decree, an ex parte decree, a decree based on a written compromise between the parties i.e under Order 23 Rule 3 of the CPC and a decree on the basis of an admission/consent suffered under Order 12 Rule 6 of the CPC. Since, in the present case, the impugned decree dated 13.12.1986 has been suffered on an admission/consent, therefore, it is covered by the provisions of Order 12 Rule 6 of the CPC and not by the provisions of Order 23 Rule 3 of the CPC. Therefore, the provisions of Order 23 Rule 3-A of the CPC are not applicable. Thus, no question of law much less substantial is found to have been involved and as such present appeal is found to be without any merit and is hereby dismissed but without any order as to costs.
Appeal dismissed.
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