Case Note & Summary
The appellant, Ramesh Balaji Ekhande, original plaintiff no.5, challenged the judgment dated 17.3.2008 passed by the District Judge-3, Nasik in Civil Appeal No.125 of 1996. The suit, Special Civil Suit No.57 of 1990, was disposed of on 1.2.1996 after recording a compromise. Respondent no.1, Namdeo Ganpat Gite, one of the plaintiffs, contended that the compromise was without his consent and after his name was deleted from the array of parties. He filed a Regular Civil Appeal against the compromise decree. The lower appellate court remitted the controversy back to the trial court. The appellant argued that a Regular Civil Appeal is not maintainable against a compromise decree under Section 96(3) of the Code of Civil Procedure, 1908, and that the remand order was perverse. The High Court agreed, holding that no appeal lies against a consent decree, and the lower appellate court had no jurisdiction to entertain the appeal or pass the remand order. The appeal was allowed, the impugned judgment was set aside, and the appeal before the District Judge was dismissed as not maintainable.
Headnote
A) Civil Procedure - Compromise Decree - Maintainability of Appeal - Order 23 Rule 3, Section 96(3) Code of Civil Procedure, 1908 - The issue was whether a Regular Civil Appeal lies against a decree passed on compromise under Order 23 Rule 3 CPC. The Court held that no appeal lies against a consent decree under Section 96(3) CPC, and the lower appellate court erred in entertaining the appeal and remanding the matter. (Paras 2-4)
B) Civil Procedure - Remand Order - Jurisdiction - Order 41 Rule 23, Section 151 Code of Civil Procedure, 1908 - The lower appellate court remanded the suit to the trial court for fresh disposal. The High Court held that since the appeal itself was not maintainable, the remand order was without jurisdiction and perverse. (Paras 2-4)
Issue of Consideration
Whether a Regular Civil Appeal is maintainable against a compromise decree passed under Order 23 Rule 3 of the Code of Civil Procedure, 1908, and whether the lower appellate court could remand the matter back to the trial court in such an appeal.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment dated 17.3.2008 passed by the District Judge-3, Nasik in Civil Appeal No.125 of 1996, and dismissed the said Civil Appeal as not maintainable.
Law Points
- Consent decree cannot be challenged by regular appeal
- Remand order set aside when appeal against consent decree is not maintainable
- Order 23 Rule 3 CPC
- Section 96(3) CPC
Case Details
2012 LawText (BOM) (10) 64
Appeal from Order No.799 of 2008
Mr. R.A. Thorat a/w Mr. K.P. Mali for Appellant, Mr. U.B. Nighot for Respondent No.1
Namdeo Ganpat Gite and others
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Appeal from Order challenging the remand order passed by the District Judge in a Regular Civil Appeal against a compromise decree.
Remedy Sought
The appellant sought setting aside of the impugned judgment dated 17.3.2008 passed by the District Judge-3, Nasik in Civil Appeal No.125 of 1996, which remitted the matter back to the trial court.
Filing Reason
The appellant contended that the Regular Civil Appeal against a compromise decree was not maintainable under Section 96(3) CPC, and the remand order was perverse.
Previous Decisions
Special Civil Suit No.57 of 1990 was disposed of on 1.2.1996 after recording a compromise. Respondent no.1 filed Regular Civil Appeal No.125 of 1996, which was allowed by the District Judge on 17.3.2008, remanding the matter to the trial court.
Issues
Whether a Regular Civil Appeal is maintainable against a compromise decree under Order 23 Rule 3 CPC?
Whether the lower appellate court could remand the matter back to the trial court in such an appeal?
Submissions/Arguments
Appellant argued that no appeal lies against a consent decree under Section 96(3) CPC, and the lower appellate court's remand order was perverse and without jurisdiction.
Respondent no.1 argued that the compromise decree was without his consent and after his name was deleted, so the decree was not a consent decree as far as he was concerned.
Ratio Decidendi
A consent decree passed under Order 23 Rule 3 CPC cannot be challenged by a Regular Civil Appeal as per Section 96(3) CPC. The lower appellate court had no jurisdiction to entertain such an appeal or to pass a remand order.
Judgment Excerpts
A short contention of Advocate Thorat on behalf of the Appellant (Original Plaintiff No.5) is that the impugned Judgment dated 17.3.2008 passed by the District Judge 3 Nasik in Civil Appeal No. 125 of 1996 remitting the controversy back to the trial Court is perverse and shows total nonapplication of mind.
He submits that the Appeal arises out Special Civil Suit No.57 of 1990 which has been disposed of finally on 1.2.1996 after recording of compromise. Thus, against the compromise decree Regular Civil Appeal was not maintainable.
Procedural History
Special Civil Suit No.57 of 1990 was filed and disposed of on 1.2.1996 by a compromise decree. Respondent no.1 filed Regular Civil Appeal No.125 of 1996 before the District Judge-3, Nasik, who on 17.3.2008 allowed the appeal and remanded the matter to the trial court. The appellant then filed the present Appeal from Order No.799 of 2008 before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 23 Rule 3, Section 96(3), Order 41 Rule 23, Section 151
