consent decree
mohan Rao
(Querist) 06 December 2008
This query is : Resolved
Hi to all,
I have come across a case where a party to suit pending at Small causes court mumbai, under rent act was deceived by his opponent and due to this he signed excuted consent terms and allowed the passing of the consent decree aginst him. Now he wnts to chlalnge the consent decree to which he was the consenting Party. can he do so/ if Yes what is the remedy available to him ? which will be the appropriate forum?
Thanx N Regards
Prakash Yedhula
(Expert) 06 December 2008
There is a provision for appeal under the Code of Civil Procedure.
[1A. Right to challenge non-appealable orders in appeal against decree-
(1) -------
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.
A. A. JOSE
(Expert) 07 December 2008
I endorse the view above. Moreover, in your case, it appears to be a case of fraud and it is a settled legal position that fraud vitiates everything. You can appeal to the superior courts showing evidence to that effect.
rupareliya
(Expert) 09 December 2008
no body can challenge consent decree if it drawn
citetion is here under
1993 (2) G. L. H. 193 SUPREME COURT N. M. KASLIWAL AND YOGESHWAR DAYAL, JJ. Hiralal Moolchand Doshi ...Appellant Versus Barot Ramanlal Ranchhoddas since deceased through his heirs and Legal Representatives ...Respondents
Civil Appeal No. 998 of 1975 D/- 18-2-1993*
* Against the judgment and order dated 17-6-1975 of the High Court of Gujarat rendered in Civil Revision Application No. 594 of 1972.
(A) Code of Civil Procedure, 1908 - O. 23, R. 3 - Applicability thereof to compromises decree in suit for rent and possession - Bombay Rents And Lodging House Rates Control Act, 1947 - Ss. 12 (2), 12 (3) (a), 13 (1) (g) and 14 (2) - Validity of Eviction decree based on compromise - Court bound to record lawful agreement or compromise - There is nothing in the provisions of the Act which make R. 3 of O. 23 inapplicable.
It is clear that whenever there is any lawful agreement the Court is bound to record the agreement or compromise. There is no provision in the Act which made R. 3 of O. 23 of the Code of Civil Procedure inapplicable to proceedings contemplated by the Act. Nor there is any provision in the Act which prohibits parties entering into a compromise in the suit for eviction filed under the Act. (Para 15)
(B) Code of Civil Procedure, 1908 - S. 47 - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Ss. 12(2), 12(3)(a), 13(1)(g) and 13(2) - Execution of consent decree - Tenant challenging its validity - From the terms of the compromise it was evident that there was an implied admission by the tenant of the grounds contained in Ss. 12(3)(a) as well as 13 (1)(g). - Executing Court not justified to permit the tenant to lead evidence of tender by him before the filing of the suit in compliance of the notice of demand as contemplated by S. 12(2) of the Act after the decree - Admission by the tenant about the existence of a statutory ground, expressly or impliedly, sufficient - It will not be open to the tenant to challenge correctness of his admission as absolutely binding on the parties - Decree not a nullity - Executing Court cannot go behind it.
An admission by the tenant about the existence of a statutory grounds, expressly or impliedly, will be sufficient and there need not be any evidence before the Court on the merits of the grounds before the compromise order is passed. If there is an admission of the tenant it will not be open to him to challenge its correctness as the admission made in [@page193] judicial proceedings are absolutely binding on the parties. At any rate decree cannot be called a nullity to enable the executing Court to go behind it. (Para 22)
It is clear from the terms of the compromise in the present case that there was an implied admission by the tenant of the grounds contained in S. 12(3)(a) as well as S. 13(1)(g) of the Act. (Para 23)
We also notice that the executing Court gave elaborate opportunity to the tenant while substantiating his objection to the validity of the decree by permitting him to lead documentary evidence which is not ordinarily granted. This permission to a tenant to lead evidence in execution is totally unwarranted in this case. The executing court is supposed to have examined the nullity of the decree on the basis of the record on which it is based. It cannot permit the parties to lead fresh evidence. (Para 24)
The High Court was also in error in assuming that the landlord in a suit for eviction on the ground of bona fide personal requirement is supposed to have pleaded his own comparative hardship in the plaint itself. S. 13 (2) comes into play at the stage when the Court is satisfied that the ground contained in clause (g) of sub-S. (1) of S. 13 of the Act has been made out. It is at that stage that the Court has to examine the question of comparative hardship. It was thus not necessary to plead in the plaint itself. Often the parties at the stage of recording of evidence of bona
rupareliya
(Expert) 09 December 2008
no body can challenge consent decree if it drawn
citetion is here under
1993 (2) G. L. H. 193 SUPREME COURT N. M. KASLIWAL AND YOGESHWAR DAYAL, JJ. Hiralal Moolchand Doshi ...Appellant Versus Barot Ramanlal Ranchhoddas since deceased through his heirs and Legal Representatives ...Respondents
Civil Appeal No. 998 of 1975 D/- 18-2-1993*
* Against the judgment and order dated 17-6-1975 of the High Court of Gujarat rendered in Civil Revision Application No. 594 of 1972.
(A) Code of Civil Procedure, 1908 - O. 23, R. 3 - Applicability thereof to compromises decree in suit for rent and possession - Bombay Rents And Lodging House Rates Control Act, 1947 - Ss. 12 (2), 12 (3) (a), 13 (1) (g) and 14 (2) - Validity of Eviction decree based on compromise - Court bound to record lawful agreement or compromise - There is nothing in the provisions of the Act which make R. 3 of O. 23 inapplicable.
It is clear that whenever there is any lawful agreement the Court is bound to record the agreement or compromise. There is no provision in the Act which made R. 3 of O. 23 of the Code of Civil Procedure inapplicable to proceedings contemplated by the Act. Nor there is any provision in the Act which prohibits parties entering into a compromise in the suit for eviction filed under the Act. (Para 15)
(B) Code of Civil Procedure, 1908 - S. 47 - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Ss. 12(2), 12(3)(a), 13(1)(g) and 13(2) - Execution of consent decree - Tenant challenging its validity - From the terms of the compromise it was evident that there was an implied admission by the tenant of the grounds contained in Ss. 12(3)(a) as well as 13 (1)(g). - Executing Court not justified to permit the tenant to lead evidence of tender by him before the filing of the suit in compliance of the notice of demand as contemplated by S. 12(2) of the Act after the decree - Admission by the tenant about the existence of a statutory ground, expressly or impliedly, sufficient - It will not be open to the tenant to challenge correctness of his admission as absolutely binding on the parties - Decree not a nullity - Executing Court cannot go behind it.
An admission by the tenant about the existence of a statutory grounds, expressly or impliedly, will be sufficient and there need not be any evidence before the Court on the merits of the grounds before the compromise order is passed. If there is an admission of the tenant it will not be open to him to challenge its correctness as the admission made in [@page193] judicial proceedings are absolutely binding on the parties. At any rate decree cannot be called a nullity to enable the executing Court to go behind it. (Para 22)
It is clear from the terms of the compromise in the present case that there was an implied admission by the tenant of the grounds contained in S. 12(3)(a) as well as S. 13(1)(g) of the Act. (Para 23)
We also notice that the executing Court gave elaborate opportunity to the tenant while substantiating his objection to the validity of the decree by permitting him to lead documentary evidence which is not ordinarily granted. This permission to a tenant to lead evidence in execution is totally unwarranted in this case. The executing court is supposed to have examined the nullity of the decree on the basis of the record on which it is based. It cannot permit the parties to lead fresh evidence. (Para 24)
The High Court was also in error in assuming that the landlord in a suit for eviction on the ground of bona fide personal requirement is supposed to have pleaded his own comparative hardship in the plaint itself. S. 13 (2) comes into play at the stage when the Court is satisfied that the ground contained in clause (g) of sub-S. (1) of S. 13 of the Act has been made out. It is at that stage that the Court has to examine the question of comparative hardship. It was thus not necessary to plead in the plaint itself. Often the parties at the stage of recording of evidence of bona
