Case Note & Summary
The applicant, Chandubhai Maganbhai Kalathiya, filed a Civil Application for Leave to Appeal against a consent decree dated 03.08.2019 passed in Special Civil Suit No.215 of 2019. The applicant claimed that the original defendant had executed a sale deed for lands bearing survey no.19/1 block no.8A admeasuring 18312 sq. mtrs. and survey no.25/2 block no.19 admeasuring 19527 sq. mtrs. at village Sabarbam, taluka Choriyasi, district Surat in his favour. Due to deficit stamp duty, the sale deed was not registered initially, but upon payment of the requisite stamp duty, it was registered on 27.11.2013. The applicant alleged that a backdated agreement to sell dated 31.01.2005 was executed between the original plaintiff and the defendant, and the suit for specific performance was filed without joining the applicant, despite the sale deed dated 28.02.2005 executed in his favour. The suit was decreed within 37 days, followed by execution of a sale deed in favour of the original plaintiff and its registration on 24.02.2022. The applicant objected to mutation entry no.831 posted in the plaintiff's name, leading to Takrari Case No.87 of 2022. The court considered the application and granted leave to appeal, holding that the applicant, being a person aggrieved by the decree, is entitled to seek leave to appeal against the consent decree.
Headnote
A) Civil Procedure - Leave to Appeal - Consent Decree - Collusive and Fraudulent Decree - Non-joinder of Necessary Party - The applicant sought leave to appeal against a consent decree passed in Special Civil Suit No.215 of 2019, alleging that the decree was collusive and fraudulent and was obtained without joining the applicant, who had a prior registered sale deed in his favour. The court held that the applicant, being a person aggrieved by the decree, is entitled to seek leave to appeal, and the application was allowed. (Paras 1-2) B) Specific Performance - Agreement to Sell - Prior Registered Sale Deed - The suit for specific performance was filed based on a backdated agreement to sell dated 31.01.2005, while the applicant had a registered sale deed dated 28.02.2005 executed in his favour. The court noted that the suit was decreed within 37 days, and the sale deed was executed in favour of the plaintiff and registered on 24.02.2022. The applicant's mutation entry was objected to, leading to Takrari Case No.87 of 2022. (Paras 2-3)
Issue of Consideration
Whether the applicant, who claims to be a purchaser of the suit property under a registered sale deed, should be granted leave to appeal against a consent decree passed in a suit for specific performance of an agreement to sell, where the applicant was not joined as a party and the decree is alleged to be collusive and fraudulent.
Final Decision
The court allowed the Civil Application for Leave to Appeal, granting the applicant leave to appeal against the consent decree dated 03.08.2019 passed in Special Civil Suit No.215 of 2019.
Law Points
- Leave to appeal against consent decree
- Collusive and fraudulent decree
- Non-joinder of necessary party
- Specific performance
- Agreement to sell
- Registered sale deed
- Stamp duty
- Mutation entry
- Takrari case
