JD can not challenge execution of compromise decree on ground of fraud
I am not inclined to give to the words "not lawful", the unrestricted connotation which Mr. Modi invites me to do. To my mind, Rule 3A, bars a substantive suit not in all imaginable cases but in cases where the compromise was "not lawful", where for instance in passing the consent decree the Court had on the face of it no jurisdiction to do so or where fraud or misrepresentation was perpetrated on the Court (as distinct as in the present case, from fraud, coercion or misrepresentation perpetrated by one party on the other or where on the face of it the consent decree suffers from some palpable defect or error which the Court must correct, where for instance it contains a term or clause opposed to law, morality or public policy or where the Court was misled into passing the consent decree, say by reason of lack of authority or limited authority of the consenting advocate or advocates not brought to the Court's notice at the time (as in Basangouda Hanmantgouda v. Churchigirigouda Yogangouad relied on by Mr. Modi), and so forth. It is in such context thus illustrated that the words "not lawful" must be construed in reference to a compromise envisaged by Rule 3A and not in each and every case where a party seeks to set aside a compromise on the ground of fraud, coercion or misrepresentation practised upon him by the other party as alleged in the present case. In such a case resort to Rule 3A would be impermissible. I do not see anything in Rule 3A as stultifying the ratio of the decisions relied on have been simpler than to have enacted that no suit shall be filed to set aside by Mr. Chagla. If such had been the intention of the Legislature, nothing could a compromise decree, rather than enacting Rule 3A in the phraseology it has been done.1
Bombay High Court
Jethalal C. Thakkar vs Lalbhai Hiralal Shah on 4 October, 1983
Equivalent citations: (1984) 86 BOMLR 10
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