Case Note & Summary
The petitioner, Govind Atmaram Kubal, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 23.12.2019 passed by the learned Civil Judge, Junior Division 'B' Court, Bicholim. By that order, the Civil Judge recalled and set aside a compromise decree passed under Order 23 Rule 3 of the Code of Civil Procedure, 1908 (CPC) and restored the suit to the file. The background of the case is that the respondent, Comunidade of Pirna, had filed a suit against the petitioner for permanent injunction in respect of a property admeasuring 136850 sq. mts. The suit was compromised on 17.11.2015, and a decree was passed in terms of the compromise. In September 2016, the respondent filed an application before the Civil Judge seeking recall of the compromise decree on the ground that the attorney who entered into the compromise had no authority. The Civil Judge, without any application under Order 23 Rule 3A CPC, recalled the decree. The High Court held that the Civil Judge had no jurisdiction to recall the compromise decree except as provided under Order 23 Rule 3A CPC, which requires an application to be made before the same court that passed the decree. The impugned order was set aside, and the compromise decree was restored.
Headnote
A) Civil Procedure Code - Compromise Decree - Recall of Decree - Order 23 Rule 3 and Rule 3A CPC - The Civil Judge recalled a compromise decree suo motu without any application under Order 23 Rule 3A CPC, which is the exclusive remedy to challenge a compromise decree on the ground of fraud. The High Court held that the Civil Judge had no jurisdiction to recall the decree and set aside the impugned order, restoring the compromise decree. (Paras 6-10) B) Civil Procedure Code - Jurisdiction of Civil Court - Inherent Power - Section 151 CPC - The Civil Court cannot invoke inherent powers under Section 151 CPC to review or recall a compromise decree when a specific remedy is provided under Order 23 Rule 3A CPC. The High Court held that the impugned order was without jurisdiction and liable to be set aside. (Paras 6-10) C) Constitution of India - Supervisory Jurisdiction - Article 227 - The High Court under Article 227 can correct errors of subordinate courts where they act without jurisdiction or in excess of jurisdiction. The High Court allowed the writ petition and set aside the order recalling the compromise decree. (Paras 1, 10)
Issue of Consideration
Whether the Civil Judge had jurisdiction to recall and set aside a compromise decree passed under Order 23 Rule 3 of the CPC without an application under Order 23 Rule 3A CPC?
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 23.12.2019, and restored the compromise decree passed under Order 23 Rule 3 CPC.
Law Points
- Compromise decree under Order 23 Rule 3 CPC cannot be recalled by civil court without an application under Order 23 Rule 3A CPC
- Civil court has no inherent power to review or recall a compromise decree except as provided under Order 23 Rule 3A CPC
- Order 23 Rule 3A CPC bars any suit or proceeding to set aside a compromise decree on ground of fraud
- Order 23 Rule 3A CPC provides exclusive remedy to challenge compromise decree before same court that passed it
- Article 227 of Constitution of India empowers High Court to correct errors of subordinate courts
