No Fresh Suit Against Compromise Decree, Remedy Not Available Directly Cannot Be Availed Indirectly By Clever Drafting: Patna High Court

Justice Sunil Dutta Mishra held, “It is not in dispute that as such the plaintiff has already moved an application before the Court concerned under Order XXIII Rule 3 A CPC which passed the said decree for setting aside compromise decree and thus, plaintiff has already availed the proper remedy available in the law. The remedy which is not directly available cannot be availed indirectly by clever drafting. The filing of fresh suit which is substantially based on declaring compromise decree as null and void is an abuse of the process of law particularly when the proper remedy has already been availed. ”

The above ruling came in a Civil Revision application filed against the order passed by the Sub Judge- VI, Patna in a Title Partition Suit whereby the court below had rejected the petition of the petitioner filed under Order VII Rule 11 and Section 11 of the Code of Civil Procedure.

As per the factual matrix of the case, the plaintiff/petitioner initiated a Title Partition Suit, while the defendant filed a partition suit concerning joint family properties. The defendants persuaded their mother, the plaintiff, and her sisters not to claim their rightful shares, promising to support and maintain the plaintiff throughout her life with respect and regard.

A compromise petition was drafted, leading to a partition of the property mainly between the defendants. The court decreed the partition based on this compromise. The plaintiff received 1634 sq. ft. of land and the right to collect rent from a shop. However, the defendants failed to fulfil their promise of support and maintenance. The plaintiff was left to fend for herself, covering her medical expenses and other needs. Eventually, she had to file a Maintenance Case against the defendants and take a loan for survival. To repay the loan, she had to sell the land she received in the partition.

The plaintiff contended that the earlier decree was invalid, asserting that it was obtained fraudulently by the defendants, both upon her and the court. Despite these claims, the court dismissed the case in a detailed order.

The Court made it clear that it was not obligated to delve into the merits of the compromise decree's validity, especially regarding fraud or the need for compulsory registration. The sole issue before the Court was whether the new lawsuit was permissible.

The Court held, “A mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise is not maintainable. The plaintiff knowing the same, had already filed Misc. Case challenging the compromise decree before the concerned Court.”

Regarding the plaintiff's argument that the original suit didn't specifically request the setting aside of the compromise decree but instead focused on property partition, the Court disagreed. It found that the lawsuit was essentially contesting the previous partition decree's nullity and lack of legal standing for any party involved.

The Court clarified that if a party wanted to challenge a consent decree based on a compromise as unlawful (void or voidable), they must approach the same Court that had recorded the compromise. Filing a separate suit to challenge the consent decree was deemed impermissible.

The Court in view of the facts and circumstances and considering the submissions on behalf of the parties and the legal position, held that the suit is liable to be rejected under Order 7 Rule 11 (d) as not maintainable, and accordingly, the civil revision petition was allowed.

Counsel/s For the Petitioner/s: Mr. Ganpati Trivedi, Sr. Advocate Mr. Abinash Kumar, Advocate Mr. Kumar Satyakirti, Advocate

Counsel/s For the Respondent/s: Mr. J.S. Arora, Sr. Advocate Mr. Manoj Kumar, Advocate Mr. Ravi Bhatia, Advocate

LL Citation: 2023 Livelaw (Pat) 124

Case Title: Dr. Shanker Prasad v. Lakshmi Devi & Ors

Case No.: Civil Revision No.93 of 2017

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