Case Note & Summary
The dispute originated from a suit for eviction (R.C.S. No.62/78) between the parties, who are relatives, concerning a structure/taverna in Survey No.15/2 of Costi village. The defendant (appellant herein) claimed ownership and sought eviction of the plaintiff (respondent). The plaintiff contended that he and his brother had constructed the structure and had acquired rights by adverse possession. On 1.7.1986, the parties filed terms of compromise, and the suit was decreed in terms of the compromise. One term allowed the plaintiff to continue business in the structure until he was unable to conduct it personally. Subsequently, on 1.8.1986, the plaintiff filed a separate suit (R.C.S. No.116/86) seeking a declaration that the consent decree dated 1.7.1986 was void. The defendant contested the suit. The trial court (Civil Judge J.D., Sanguem) dismissed the suit on 29.11.1988. However, the Additional District Judge, Margao, by judgment/order dated 13.4.1998, reversed the trial court's decision and declared the consent decree void, directing the suit to proceed. The defendant filed the present second appeal. The High Court framed two substantial questions of law: (a) whether a separate suit impugning a consent decree on the ground that it is not lawful is maintainable in view of Order XXIII Rule 3A CPC, and (b) whether the appellate court's judgment was perverse. The appellant argued that Order XXIII Rule 3A expressly bars a separate suit to set aside a consent decree, and the only remedy is to challenge it in the same proceedings. The respondents contended that the consent decree was unlawful and could be challenged by a separate suit. The High Court held that Order XXIII Rule 3A CPC clearly bars a separate suit to set aside a consent decree on any ground, including illegality. The court relied on the pronouncement of the Supreme Court that a consent decree can only be challenged on the ground of fraud or lack of jurisdiction, not on the ground that it is unlawful. The appellate court's judgment was found to be perverse as it was not based on evidence on record and misapplied the law. Consequently, the High Court allowed the second appeal, set aside the appellate court's judgment, and restored the trial court's decree dismissing the suit.
Headnote
A) Civil Procedure Code - Order XXIII Rule 3A - Maintainability of Separate Suit - Bar on Suit to Set Aside Consent Decree - The court considered whether a separate suit challenging a consent decree as unlawful is maintainable. Held that Order XXIII Rule 3A CPC expressly bars such a suit, and the only remedy is to challenge the consent decree in the same proceedings. The trial court's dismissal of the suit was upheld, and the appellate court's contrary view was set aside. (Paras 1, 6-8) B) Civil Procedure Code - Order XXIII Rule 3A - Consent Decree - Illegality - The court examined the scope of Order XXIII Rule 3A and held that a consent decree can only be challenged on the ground of fraud or lack of jurisdiction, not on the ground that it is unlawful. The plaintiff's suit seeking declaration that the consent decree was void was not maintainable. (Paras 6-8) C) Evidence - Perversity - Appellate Court's Finding - The court held that the appellate court's judgment was perverse as it was not based on evidence on record and misapplied the law. The trial court's findings were based on proper appreciation of evidence. (Paras 9-10)
Issue of Consideration
Whether a separate suit impugning a consent decree on the ground that it is not lawful is maintainable in view of Order XXIII Rule 3A CPC, and whether the impugned judgment is perverse.
Final Decision
The High Court allowed the second appeal, set aside the judgment and order of the Additional District Judge, Margao dated 13.4.1998, and restored the decree of the trial court dated 29.11.1988 dismissing the suit.
Law Points
- Order XXIII Rule 3A CPC bars separate suit to set aside consent decree on ground of illegality
- maintainability of suit challenging consent decree
- perversity of judgment
