Case Note & Summary
The appeal arises from a judgment of a learned Single Judge of the Bombay High Court dated 28 September 2012, which made absolute a motion for recording a compromise in terms of consent terms allegedly agreed upon between the parties on 5 December 2011, and decreed the suit for partition accordingly. The appellant, Kamlakant Natwarlal Shah, and the first respondent, Jagdishchandra Natwarlal Shah, are brothers. The second respondent is their mother, and the third respondent is their sister. The appellant instituted a suit for partition of two residential flats: one at Himgiri Co-operative Society, Peddar Road, Mumbai, and another at Deccan Chambers, Girgaum, Mumbai. The Himgiri flat originally belonged to the appellant and his father in equal shares. After the father's death, his share devolved equally on four co-sharers. The appellant claimed to have acquired additional shares from his mother and sister through a deed of relinquishment in 2009, resulting in an 87.5% share in the Himgiri flat, with the first respondent holding 12.5%. In the Deccan Chambers flat, both brothers held equal shares. The suit was filed in January 2010. The second and third respondents supported the appellant's claim. During negotiations, the first respondent paid Rs.48 lakhs to the appellant via RTGS on 12 November 2011. The appellant alleged that consent terms were signed under coercion and without proper authority. The learned Single Judge made the motion absolute without holding an inquiry into the disputed execution. The Division Bench held that under Order XXIII Rule 3 CPC, when a compromise is disputed, the court must record satisfaction that it is lawful and genuine. Since the execution was disputed and no proper verification was done, the consent decree was set aside. The appeal was allowed, and the matter was remanded for trial.
Headnote
A) Civil Procedure - Consent Decree - Order XXIII Rule 3 CPC - Recording of Compromise - Where the execution of consent terms is disputed, the court must hold an inquiry and record satisfaction that the compromise is lawful and genuine - The learned Single Judge erred in making the motion absolute without proper verification - Held that the appeal is allowed and the consent decree is set aside (Paras 1-19).
Issue of Consideration
Whether a consent decree can be passed under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 when the execution of the consent terms is disputed and the court has not recorded a proper satisfaction as to the genuineness of the compromise.
Final Decision
The appeal is allowed. The judgment and decree dated 28 September 2012 passed by the learned Single Judge is set aside. The motion for recording compromise is dismissed. The suit is restored to its original position for trial. No order as to costs.
Law Points
- Consent decree
- Order XXIII Rule 3 CPC
- Verification of compromise
- Recording of compromise
- Disputed execution of consent terms
