Case Note & Summary
Background: The dispute arose from Suit No. 1188 of 1984 concerning certain properties. Premnath, brother of original plaintiff No. 1, had been recognized as having joint rights in the suit property subject to the outcome of this suit through consent terms in Appeal from Order No. 676 of 1992. He was later impleaded as defendant No. 12 in the present suit and filed a written statement. After his death on 13 August 2007, his heirs (the applicants) communicated the fact to the plaintiffs’ advocate and requested to be brought on record, but the plaintiffs took no steps. Subsequently, on 12 May 2008, the plaintiffs, along with defendant No. 4 and newly added defendant Nos. 13 and 14, filed consent terms and obtained a decree. The applicants alleged that this decree was procured by collusion and fraud, resulting in the extinction of their rights in the suit property. They filed the present notice of motion seeking to set aside the decree, restore the suit, and be joined as party defendants. The contesting defendants opposed the motion, arguing that no fraud was practised and that the applicants should file a substantive suit. The primary legal issue before the court was the maintainability of the notice of motion in light of Order 23 Rule 3A of the Code of Civil Procedure, 1908, which bars a suit to set aside a consent decree on the ground that the compromise was not lawful. The applicants contended that the bar compelled them to move by way of an application rather than a separate suit, especially since fraud on the court was alleged. The defendants argued that the proper remedy was a separate suit. The court, after analyzing Order 23 in its entirety and referring to the precedent in Jethalal C. Thakkar v. Lalbhai Hiralal, observed that the restriction under Rule 3A is not absolute and applies primarily to parties to the suit. Where fraud is perpetrated on the court, a non-party may be entitled to seek relief by way of an application. The court inclined towards the view that the motion was maintainable, though the extract of the judgment ends before a final decision on merits is recorded. Consequently, the ultimate outcome of the motion remains unstated in the provided text.
Headnote
A) Civil Procedure - Withdrawal and Adjustment of Suits - Order 23 Rule 3A CPC - Non-Party Application to Set Aside Consent Decree for Fraud - Code of Civil Procedure, 1908, Order 23 Rule 3A - The heirs of a deceased defendant, who had not been brought on record, sought to set aside a consent decree alleging collusion and fraud on the court. The Court considered the applicability of the bar under Order 23 Rule 3A and, relying on Jethalal C. Thakkar, observed that the bar primarily affects parties to the suit and does not preclude a non-party from maintaining an application to set aside a decree obtained by fraud on the court. (Paras 15-18).
Issue of Consideration
Whether a notice of motion by heirs of a deceased defendant (who were not brought on record) to set aside a consent decree on ground of fraud is maintainable in light of Order 23 Rule 3A CPC.
Law Points
- Order 23 Rule 3A CPC
- fraud on court
- maintainability of application by non-party to set aside consent decree
- Jethalal C. Thakkar v. Lalbhai Hiralal (1984) 86 BLR 10
