L.N Mittal, J. (Oral)

Defendant no. 2 Pardeep Kumar Mehta has filed the instant second appeal after the defendants (appellant and proforma respondent no. 8 Harpinder Singh defendant no. 1) remained unsuccessful in both the courts below.

Suit was filed by Dr. Kirpal Singh (plaintiff no. 1 since deceased and represented by respondents no. 1 to 6 as his legal representatives) and his brother Dr. Gurdial Singh plaintiff no. 2.respondent no. 7 against the appellant and proforma respondent no. 8 challenging consent judgment and decree dated 20.7.1991 passed in civil suit No. 479/91 titled Harpinder Singh v. Kirpal Singh and others. The plaintiffs alleged that the suit property was purchased by the plaintiffs vide sale deed dated 10.5.1962 in the name of their father Tehal Singh. After purchase they completed the construction and also added another story in the house by spending huge amount. The plaintiffs and their other family members including their mother Laj Kaur started residing in the said house. Plaintiffs' father Tehal Singh died in the year 1982. Plaintiffs' sister Gurdeep Kaur was married with Harpinder Singh defendant no. 1 in the year 1971. However, defendant no. 1 was harassing and torturing Gurdeep Kaur for forcing her to bring more money from her parents and brothers. Defendant no. 1 also used to claim share in the disputed house and other properties. Some demands of defendant no. 1 used to be met by parents of the plaintiffs. Defendant no. 1 and his family members including plaintiffs' sister Gurdeep Kaur were allowed to live in the suit house for some time so that in the meantime defendant no. 1 could make some alternative arrangement. After death of plaintiffs' father, plaintiffs intended to sell the disputed house and asked defendant no. 1 to vacate the same after six months. However, before filing of the suit, plaintiffs learnt that defendant no. 1 had sold the suit house to defendant no. 2 appellant vide sale deed dated 27.7.1999 allegedly on the basis of consent decree dated 20.7.1991 The plaintiffs alleged that the said decree was obtained by fraud and impersonation and is null and void and is not binding on them and consequently, the sale deed dated 27.7.1999 is also null and void and is not binding on the plaintiffs. The plaintiffs also claimed relief of possession of the suit house.

The defendants controverted the plaint allegations and inter alia pleaded that they are owners in possession of the suit house. Plaintiffs' father Tehal Singh had himself purchased the suit house vide sale deed 10.5.1962 By family arrangement out of love and affection, Tehal Singh gave the suit house to defendant no. 1 and in pursuance of said family settlement-cum-arrangement gave its actual possession to him in the year 1981. Since then defendant no. 1 and his wife and other family members continued in actual possession of the suit house and plaintiffs never raised any objection to the same. Defendant no. 1 and his wife also served plaintiffs' mother Laj Kaur till her death in the year 1995 after she became disabled in an accident. In the year 1986, the plaintiffs tried to back out of the settlement and thereupon by way of compromise defendant no. 1 paid Rs 1,10,000/- as price of the suit house to the plaintiffs by way of hush up money. Decree dated 20.7.1991 and sale deed dated 27.7.1999 were claimed to be legal and valid. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Karnal vide judgment and decree dated 31.10.2006 decreed the plaintiffs' suit. First appeal preferred by both the defendants stands dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 3.2.2010 Feeling aggrieved, defendant no. 2 only has preferred the instant second appeal.

I have heard learned senior counsel for the appellant at considerable length and perused the case file.

It is admitted fact that plaintiff no. 2 Gurdial Singh was not even party to consent decree dated 20.7.1991 Consequently, the said decree could not effect the rights and share of plaintiff no. 2 in the suit house in any manner. Learned counsel for the appellant could not advance any meaningful argument qua share of plaintiff no. 2 Gurdial Singh in the suit house.

As regards plaintiff no. 1, consent decree dated 20.7.1991 on his behalf was suffered by his sister Gurdeep Kaur (wife of defendant no. 1) as attorney of plaintiff no. 1. However, Gurdeep Kaur had no authority under the power of attorney given by plaintiff no. 1 to her to suffer the said consent decree. Operative part of the said power of attorney has been reproduced by the trial court in paragraph no. 43 of the judgment (at page 61 of the paper book). It reveals that plaintiff no. 1 authorised his attorney to have correspondence with the concerned departments and also to sell the suit house on behalf of plaintiff no. 1 and to receive sale consideration. However, admittedly Gurdeep Kaur as attorney of plaintiff no. 1 did not sell suit house and rather suffered consent decree on behalf of plaintiff no. 1 in favour of defendant no. 1 who is none else but husband of Gurdeep Kaur. However, by way of power of attorney plaintiff no. 1 had not authorised Gurdeep Kaur to suffer any such consent decree on his behalf. Consequently, consent decree dated 20.7.1991 was not validly suffered even on behalf of plaintiff no. 1 by his attorney Gurdeep Kaur who had no authority to suffer the same. Admittedly, plaintiff no. 1 himself did not appear in the previous suit no. 479/91 in which the said consent decree was passed. The said consent decree was passed on the basis of admission made by Gurdeep Kaur as attorney of plaintiff no. 1. However, in the power of attorney there is no provision authorising Gurdeep Kaur to suffer any such consent decree on behalf of plaintiff no. 1.

Faced with the aforesaid situation, learned counsel for the appellant vehemently contended that power to sell or transfer the suit house as given by the power of attorney by plaintiff no. 1 to Gurdeep Kaur included the power to suffer the consent decree. The contention cannot be accepted being devoid of any merit. It was special power of attorney given by plaintiff no. 1 to Gurdeep Kaur. It was not general power of attorney authorising Gurdeep Kaur to do all or any acts on behalf of plaintiff no. 1 qua suit house. On the other hand, specific power was conferred on Gurdeep Kaur by plaintiff no. 1 to do specific acts as mentioned in the power of attorney. The said specific acts did not include the power to suffer the consent decree by Gurdeep Kaur on behalf of plaintiff no. 1. Consequently, the consent decree was not validly suffered by Gurdeep Kaur on behalf of plaintiff no. 1 and has been rightly held to be null and void.

Learned counsel for the appellant next contended that consent decree could not be challenged by way of separate suit in view of provision of Order 23 Rule 3A of the Code of Civil Procedure (in short, CPC). Reliance in support of this contention has been placed on two judgments of this Court i.e Jeet Kaur v. Harbans Kaur and others, 2010(2) PLR 11 and Moorti D/o Kaka Singh v. Kaur Singh and others, 2008(3) PLR 601. There is no quarrel with the legal preposition. Order 23 Rule 3A CPC itself is very clear and stipulates that compromise decree cannot be challenged by way of separate suit. Same preposition of law has been laid down in the aforesaid two judgments. However, in the instant case it was not a compromise decree under Order 23 Rule 3 CPC which could not have been challenged by way of separate suit under Order 23 Rule 3A CPC. On the contrary, it was a consent decree passed on the basis of admission made by Gurdeep Kaur on behalf of plaintiff no. 1 as his attorney. Consent decree is distinct and different from compromise decree. Consent decree is passed under Order 12 Rule 6 CPC whereas compromise decree is passed under Order 23 Rule 3 CPC. Learned counsel for the appellant himself has cited judgment of this Court in Rajinder and others v. Randhir and others, 2010(2) PLR 154 wherein it was held that compromise decree is distinct and different from consent decree. Consequently, provision of Order 23 Rule 3A CPC barring separate suit to challenge the compromise decree is not applicable to consent decree which is passed under Order 12 Rule 6 CPC. Learned counsel for the appellant in spite of pointed inquiry failed to refer to any provision barring separate suit to challenge consent decree passed under Order 12 Rule 6 CPC. On the other hand, judgment in the case of Rajinder (supra) cited by learned counsel for the appellant in support of his contention that consent decree also cannot be challenged by separate suit rather goes against the appellant. In that case consent decree was challenged by way of separate suit. The said suit was decreed and the decree was upheld by this Court in second appeal. It is, thus, apparent that consent decree can be challenged only by separate suit and there is no other provision to challenge the consent decree nor there is any provision to bar separate suit to challenge the consent decree.

In addition to the aforesaid, it may be added that in the instant case consent decree dated 20.7.1991 is not consent decree qua plaintiffs because plaintiff no. 2 was not even party to the same whereas plaintiff no. 1 did not suffer the same as his attorney Gurdeep Kaur who suffered the said decree was not autorised to suffer the same. Consequently, even plaintiff no. 1 was legally not party to the said decree and the said decree is deemed to have been passed against plaintiff no. 1 without his consent. For this reason as well, separate suit to challenge the consent decree is certainly maintainable.

Both the courts below have arrived at concurrent finding against defendants. The said finding is based on proper appreciation of evidence and is supported by very detailed reasons recorded by the courts below. The said finding is fully justified and is not shown to be illegal and perverse so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is completely devoid of any merit and is accordingly dismissed in limine.

(L.N Mittal) November 01, 2010 Judge