Case Note & Summary
The appellants, Nandlal Kewalramani and Shobhadevi Kewalramani, are the parents of respondent No.1, Rajesh Nandlal Kewalramani. The dispute pertains to Flat No.11, Brijbala Building, Bandra (West), Mumbai. The appellants filed S.C. Suit No.3160 of 2015 for specific performance of an agreement to sell the flat. During the pendency of the suit, the parties entered into consent terms on 19th July 2016, which were recorded by the trial court. The consent terms provided that respondent No.1 would hand over vacant possession of the flat to the appellants by 31st July 2016 and pay mesne profits at Rs. 15,000 per month from 1st August 2016 until possession is delivered. The respondents failed to comply. The appellants filed Notice of Motion No.1614 of 2017 seeking compliance of the consent order. The trial court dismissed the motion on 14th August 2017, holding that the suit was for specific performance and not for possession, and that the consent terms were not a decree. The appellants appealed. The High Court held that the consent terms, once recorded, constitute a decree under Order XXIII Rule 3 CPC and are binding and executable. The court found that the trial court erred in dismissing the motion. The High Court allowed the appeal, set aside the trial court order, and directed the respondents to hand over possession of the flat to the appellants within three months and pay mesne profits at Rs. 15,000 per month from 1st August 2016 until possession is delivered. The court also directed the trial court to proceed with the suit for specific performance.
Headnote
A) Civil Procedure - Consent Decree - Binding Nature - Order XXIII Rule 3 CPC - Consent terms recorded in a suit are binding on the parties and have the force of a decree - The court cannot ignore or modify the consent terms except on grounds of fraud or misrepresentation - Held that the trial court erred in dismissing the application for compliance without considering the binding nature of the consent order (Paras 10-15). B) Property Law - Possession - Mesne Profits - Specific Performance - Consent Terms - The consent terms provided for handing over possession of the suit flat and payment of mesne profits at Rs. 15,000 per month from 1st August 2016 until possession is delivered - The respondents failed to comply, and the appellants sought enforcement - Held that the appellants are entitled to possession and mesne profits as per the consent terms (Paras 16-20). C) Civil Procedure - Execution of Consent Decree - Notice of Motion - The trial court dismissed the Notice of Motion on the ground that the suit was for specific performance and not for possession, and that the consent terms were not a decree - Held that the consent terms, once recorded, constitute a decree and are executable, and the trial court's view was erroneous (Paras 21-25).
Issue of Consideration
Whether the trial court was justified in dismissing the Notice of Motion seeking compliance of the consent order dated 19th July 2016, and whether the appellants are entitled to possession and mesne profits as per the consent terms.
Final Decision
Appeal allowed. Order dated 14th August 2017 passed by City Civil Court, Dindoshi is set aside. Notice of Motion No.1614 of 2017 is allowed. Respondents are directed to hand over vacant possession of Flat No.11, Brijbala Building, Bandra (West), Mumbai to the appellants within three months and pay mesne profits at Rs. 15,000 per month from 1st August 2016 until possession is delivered. Trial court to proceed with the suit for specific performance.
Law Points
- Consent terms are binding and executable
- Order XXIII Rule 3 CPC
- Mesne profits
- Possession
- Compliance of consent order
- Binding nature of consent decree
