Case Note & Summary
The case involves an appeal filed by Girja Shankar G. Gupta and others against an order of a learned Single Judge of the Bombay High Court dated 18 June 2012. The learned Single Judge had accepted Consent Terms arrived at between the original plaintiffs and the Fourth Defendant (acting for himself and Defendants 5 to 10) and passed a decree in terms thereof. The appellants were originally plaintiffs 15, 16, 20 and 23 in the suit, which sought specific performance of agreements with the developer (the Fourth Defendant). On 10 June 2004, initial consent terms were arrived at in a notice of motion, but the developer failed to comply. On 4 October 2011, the appellants were transposed as defendants due to disputes among the plaintiffs. On 18 June 2012, the learned Single Judge took on record fresh Consent Terms between the plaintiffs and the Fourth Defendant, noting that the plaintiffs had signed the terms and their signatures were identified by the advocate, and the Fourth Defendant was present and had signed. The suit was disposed of accordingly. The appellants filed a notice of motion seeking removal of the Fourth Defendant as developer and rejection of the consent terms, and also filed the present appeal against the order accepting the consent terms. The court considered a preliminary objection regarding maintainability of the appeal under Section 96(3) read with Order 23 Rule 3 CPC. The court held that no appeal lies against a consent decree, as per Section 96(3) CPC, and the proviso to Order 23 Rule 3 also bars an appeal against a compromise decree. The appeal was dismissed as not maintainable, with no order as to costs.
Headnote
A) Civil Procedure - Consent Decree - Maintainability of Appeal - Section 96(3) CPC, Order 23 Rule 3 CPC - The court held that an appeal against a decree passed in terms of consent terms is not maintainable by virtue of Section 96(3) read with the proviso to Order 23 Rule 3 of the Code of Civil Procedure, 1908. The appeal was dismissed as not maintainable. (Paras 1-5)
Issue of Consideration
Whether a substantive appeal against an order passed in terms of Consent Terms is maintainable under Section 96(3) read with Order 23 Rule 3 of the Code of Civil Procedure, 1908.
Final Decision
The appeal is dismissed as not maintainable. No order as to costs.
Law Points
- Appeal against consent decree not maintainable
- Section 96(3) CPC bars appeal from consent decree
- Order 23 Rule 3 CPC compromise decree finality
Case Details
2013 LawText (BOM) (07) 56
APPEAL NO. 452 OF 2012 IN SUIT NO. 631 OF 2003
Dr. D.Y. Chandrachud, S.C. Gupte
Mr. A.J. Rizvi for the Appellants, Mr. Mayur Khandeparkar i/b Mr. R.D. Suvarna for Respondent Nos.14 to 37, Mr. D.K. Patil, Section Officer / Representative of Court Receiver present
Girja Shankar G. Gupta & Ors.
M/s.Shanil Builders & Ors.
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Nature of Litigation
Appeal against order accepting consent terms and passing decree in a suit for specific performance.
Remedy Sought
The appellants sought to challenge the order of the learned Single Judge dated 18 June 2012 accepting the Consent Terms and disposing of the suit.
Filing Reason
The appellants, originally plaintiffs, were transposed as defendants and opposed the consent terms entered into between the other plaintiffs and the developer.
Previous Decisions
The learned Single Judge on 18 June 2012 accepted the Consent Terms and passed a decree in terms thereof, disposing of the suit.
Issues
Whether a substantive appeal against an order passed in terms of Consent Terms is maintainable under Section 96(3) read with Order 23 Rule 3 of the Code of Civil Procedure, 1908.
Submissions/Arguments
The respondents raised a preliminary objection that the appeal is not maintainable by virtue of Section 96(3) read with the proviso to Order 23 Rule 3 CPC.
The appellants argued against the maintainability objection (impliedly, as the court considered the objection).
Ratio Decidendi
No appeal lies against a decree passed by the court with the consent of the parties, as per Section 96(3) of the Code of Civil Procedure, 1908. The proviso to Order 23 Rule 3 also bars an appeal against a compromise decree. Therefore, the appeal against the consent decree is not maintainable.
Judgment Excerpts
A preliminary objection has been raised to the maintainability of the appeal on the ground that a substantive appeal against an order passed in terms of Consent Terms is not maintainable by virtue of the provisions of Section 96(3) read with the proviso to Order 23 Rule 3 of the Code of Civil Procedure, 1908.
In the circumstances, the Appeal is dismissed as not maintainable. There shall be no order as to costs.
Procedural History
The suit (Suit No. 631 of 2003) was filed for specific performance. On 10 June 2004, consent terms were arrived at in Notice of Motion 634/2003, but the developer failed to comply. On 4 October 2011, the appellants were transposed as defendants. On 18 June 2012, the learned Single Judge accepted fresh Consent Terms between the plaintiffs and the Fourth Defendant and disposed of the suit. The appellants filed Notice of Motion 1059/2012 seeking removal of the developer and rejection of the consent terms, and also filed the present appeal against the order of 18 June 2012.
Acts & Sections
- Code of Civil Procedure, 1908: Section 96(3), Order 23 Rule 3
