REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1085  OF 2009 (Arising out of SLP (C) No.4045 of 2007)

Sneh Gupta … Appellant

Versus

Devi Sarup & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Interpretation of Order XXIII Rule 1 of the Code of Civil Procedure

is  involved  in  this  appeal.  It  arises  out  of  a  judgment  and  order  dated

13.9.2006 passed by a learned Single Judge of the High Court of Punjab and

Haryana setting aside an order dated 29.9.2005 passed by the Additional

District Judge, Jagadhari whereby and whereunder the terms of settlement

entered into by way of an agreement dated 25.4.1998 between some of the

parties hereto were declared illegal as also null and void.   

3. Indisputably, two suits were filed being Suit No.185 of 1989 and Suit

No.303 of 1992 on 20.11.1989 and 21.3.1992 before the Additional Civil

Judge, Jagadhari, Haryana and Senior Division Bench and before the Civil

Judge, Jagadhari, Haryana, respectively.

In  the  said  suits,  inter  alia,  the  question  as  regards  an  order  of

mutation carried out in the Revenue records pursuant to or in furtherance of

a transfer made by one Raghuvir Singh in favour of his wife and son stated

to  be  under  an  oral  gift  deed representing  himself  as  the  successor  of

Bhanumal was in question.  We would refer to the respective claims made in

the  said  suits  a  little  later.   We may,  however,  at  this  stage,  notice  the

genealogical tree which is as under :

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Banu Mal

Munni  Devi

W/o O.P. Gupta

Veena  Nirwani

Chander  Nirwani

Sneh Lata  @ Sneh  Gupta

Pawan  Gupta

K.K.  Gupta

Vinod  Gupta

Raghbir Singh Cousin of  Banu Mal

(Kesho Devi-wife)

Devi Sarup (Maya Devi – wife) Kusum Lata

4. Raghbir Singh is said to be the third cousin of Banu Mal.  Banumal is

said  to  have  executed  a  Will  in  favour  of  Munni  Devi  on  or  about

14.11.1937.  He is again said to have executed a Will in favour of Raghbir

Singh on or about 27.3.1943.  According to the plaintiff, Raghbir Singh had

acquired life interest in the purporting said Will without having any right to

alienate, transfer, mortgage or creating any charge on the properties situated

in various villages, namely, Rapri, Radur, Ghesfur etc.

5. In Suit  No.185 of  1989,  the cause of  action is  said to have arisen

when order of mutation was passed in favour of the transferees of Raghbir

Singh.  Whereas the decree prayed for in Suit No.303 of 1992 was for a

declaration that Raghubir Singh was only having a life interest in the suit

property and having not abided the terms and conditions contained in the

said Will dated 27.3.1943, has lost his right to manage the property in suit;

an order of mutation was the subject matter of Suit No.185 of 1989, on the

premise, as has been noticed by the learned Trial Judge as under :

“i) That in the alleged mutation, Banu Mal has been  shown  to  be  without  his  wife  and children,  but  in  fact,  he  had  a  daughter named  Jeewani  @  Munni  Devi,  living  at that  time.   Thus,  said  mutation  was sanctioned by producing a fictitious person, in place of Banu Mal;

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ii) that  mutation  was  neither  verified  nor initialed  with  date  by  filed  Kanungo,  as required  under  para  7.4(ii)  of  the  Punjab Land Records Manual;

(iii) that another mutation No.1423 pertaining to the  partition  of  joint  holdings,  was sanctioned  on  28.2.1954,  but  there  is  no mention in the disputed mutation No.1427, entered  on  26.2.1954  and  sanctioned  on 2.3.1954, therein.  Thus, disputed mutation was kept secret and later on got sanctioned, in  collusion  with  revenue  officers.   The disputed  mutation  was  sanctioned  without any request of Banu Mal;

(iv) that  mutation  No.1422  and  1423,  dated 28.2.1954 show that the consolidation work in  village  Rapri  started  on  25.8.1952  and completed  on  28.2.1954  but  disputed mutation was entered prior to completion of consolidation  work  and  without  any approval  or  sanction  of  the  Consolidation Officer,  as  required  to  be  made under  the Consolidation  of  Holdings  of  Punjab  Act, 1948.   Had  it  been  in  the  knowledge  of Banu  Mal,  then  he  would  have  filed  an application before the consolidation Officer, but  no such application is available on the record;

(v) that  under  the  will,  Raghubir  Singh (defendant  No.4)  had  a  life  estate  on  the property  in  dispute,  but  he  has alienated/gifted/transferred  the  property  of the  Will  to  different  persons,  without  any right,  title  and  against  the  dictates  of  the will.  Thus, this fact goes to prove the mala fide  and  fraudulent  intention  of  Raghubir Singh, who got the disputed mutation forged and fabricated.  The disputed mutation does

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not show the name of the person, in whose favour of the alleged oral hiba was made by Banu Mal; and

(vi) that said Banu Mal had been residing with his  religious Guru at  Saharanpur (UP) and die to his illness, he was unable to work for about one year, prior to his death.  He was completely  confined  to  his  bed  and therefore,  he  was  not  present  before  the revenue officer,  at  the  time of  sanction  of that mutation.”

6. The cause of action for institution of the Suit No.303 of 1992 is said

to have arisen as Raghbir Singh had not carried out the testator’s intentions

contained in the said Will dated 27.3.1943 and, thus, violated the terms of

the  ‘trust’  and  despite  having  been  called  upon  to  handover  possession

failed and/or refused to do so.   

7. The properties in suit involved in both the suits were also different.

Whereas  in  Suit  No.185 of  1989,  the subject  matter  of  the  suit  was  835

kanals and 7 marlas of land (485 acres) situated in the revenue estate of

village Rapri in the State of Haryana, the subject matter of in Suit No.303 of

1992  was  the  land  measuring  221  kanal  8  marlas  (about  24-25  acres)

situated in village Rapri, Radaur, Ghespur and Dholra).   

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Title  Suit  No.185  was  decreed  by  a  judgment  and  decree  dated

30.10.1996  passed  by  the  Additional  Civil  Judge,  Senior  Division

Jagadhari, Haryana, holding :

“As a result  of  my findings and observations on above issues and more particularly, on issue No.1, 2 and 9,  the suit  of the plaintiff  is  decreed with cost,  against  the defendants  No.1 to 4 and 11 to 24,  with  the  declaration  that  mutation  No.1427, sanctioned  on  2.3.1954  (Ex.P-8)  and  sale  deeds and mutations, subsequent thereto, are illegal, null and void, ineffective,  ultra vires and not  binding upon the rights of plaintiff and defendants No.5 to 9 and plaintiff and defendants No.5 and 9 are also entitled  to  the  possession  of  the  suit  land  and defendants  No.1  and  4  and  11  to  24  are  also restrained  from further  alienating,  transferred  or creating  any  charge  on  the  suit  land,  in  any manner.”

8. In  passing  the  said  judgment  and  decree,  the  Court  arrived  at  a

finding  that  Raghbir  Singh  played  a  fraud  in  making  transfer  of  the

properties  purported  to  be  under  a  ‘hiba’  made  by  Banumal.   It  was

furthermore held that order of mutation was not passed in presence of Banu

Mal.  The learned Judge pointed out that while Banu Mal had been shown to

be without any issue before the Revenue Officer although , admittedly, he

had a daughter named Munni Devi @ Jeewani.

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It was, therefore, opined that the purported gift in terms whereof the

mutation was sanctioned in favour of the respondent Nos.1,  2 and 3 and

their  mother  was  an  act  of  fraud  and  misrepresentation  on  their  part  to

deprive  the  children  of  Munni  Devi,  the daughter  of  Banu Mal,  of  their

properties.   

9. Respondent  Nos.  1  to  3  herein  and  Raghbir  Singh  filed  appeals

thereagainst  before  the  District  Judge  which  were  marked  as  Appeal

No.254/33  of  1996.   As  some  properties  had  been  transferred,  the

transferees  thereof  also  preferred  appeals  which  were  marked  as  Appeal

Nos.218 and 220 of 1996.   

10. It is not in dispute that during the pendency of the said appeals, the

plaintiff  and  the  respondent  No.3  entered  into  a  compromise.   A

compromise petition was filed in Civil Appeal No.254 of 1996, the terms

whereof are as under :

“That  the  parties  have  compromised.   As  per compromise,  the  appeal  of  the  appellant  may kindly be allowed and the suit of the respondents may kindly  be  dismissed  as  withdrawn  and  the parties be left to bear their costs.  The appellants are the absolute owners of the suit property.”

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11. The  learned  Additional  District  Jagadhari  in  whose  court  the  said

appeal was transferred for disposal recorded the compromise allowing the

appeal and dismissing the suit of Veena Nirwani.  A declaration was also

made that the appellants therein (Respondents Nos. 1 to 3 herein) were the

absolute owners of the said property.   

It  is  not  in  dispute  that  the  appellant  and/or  other  heirs  and  legal

representatives  of  the  said  Munni  Devi  were  not  parties  to  the  said

compromise.   

A  compromise  was  also  said  to  have  been  entered  into  by  Veena

Nirwani-plaintiff with Raghbir Singh and others in Suit No.303 of 1992, the

terms whereof read as under :

“1. That the suit of the plaintiff is to be decreed as prayed for in the plaint  except  the land measuring  42   Kanals  3  marlas  i.e.  1/3rd share  of  the  land measuring  126 Kanals  9 marlas fully detailed and described in para ‘C’ of the heading of the plaint.

2. That  the  defendant  No.1  has delivered/handed  over  the  whole  property fully detailed and described in the heading of the plaint to the plaintiff and defendants Nos.2 to 6 at the spot and now the plaintiff and defendants Nos.2 to 6 are in actual and physical  possession  being  its  owners  and defendant  No.1  or  his  successors  or  LRs

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will  have  no  right,  title  or  interest  of  any kind in the land in suit.

3. That  the  defendant  No.1  has  an  electric tube-well in the area of village Dhaulra and defendant No.1 will be bound to give water for irrigation to the plaintiff and defendant Nos. 2 and 6 for one year.

4. That the plaintiff and defendants Nos.2 and 6  are  owners  in  possession  of  tree  etc. standing  in  the  land in  suit  and the  plaint has  been  delivered  to  the  plaintiff  and defendant  Nos.2  and  6.   However,  some portion  of  these  properties  are  under  the tenancy  of  different  persons  and  now  the plaintiff  and  defendants  Nos.2  and  6  will have  a  right  to  recover  the  rent  of  these properties  and  deal  with  the  properties  in the manner they like i.e. they have each and every  right  to  eject  the  tenant  and  get possession of the same and to alienate etc. Shops  mentioned  at  point  G  &  H  have already  been  alienated  by  the  defendants and  the  relief  regarding  these  shops  is relinquished by the plaintiff.

5. That according to the aforesaid compromise the possession  has  been changed and now the plaintiff  and defendant  Nos.2 to  6 can get the entries corrected in their name in the revenue  records  well  as  in  the  relevant municipal record etc.”  

12. The  said  compromise  petition  was  also  accepted.   It  is  stated  that

pursuant to or in furtherance thereof, Raghbir Singh delivered possession of

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2/3rd of the property in suit in favour of Respondent Nos.4 to 8 herein as

also the appellant, retaining the 1/3rd thereof.  The suit was decreed in part.

13. Appellant filed an application before the Court of Additional District

Judge, Jagadhari questioning the compromise entered into by and between

the plaintiff and the respondent Nos.1 to 3 pursuant whereto the said suit

No.185 of 1989 was allowed to be withdrawn on the premise it had been

done without her knowledge and consent and despite the fact that she had

got vested rights therein in terms of the judgment and decree passed by the

trial court in suit No.185 of 1989.  It was furthermore contended that prior

to acceptance of the said compromise, it was obligatory on the part of the

learned Judge to issue notice upon the appellant  and others  who derived

benefit under the said judgment and decree dated 30.10.1996 passed in Suit

No.185 of 1989.  The learned Additional District Judge by an order dated

29.9.2005 accepted the said contentions of the appellant and set aside the

compromise decree dated 25.4.1998 opining that the same was illegal, null

and void.

14. Applications under Article 227 of the Constitution of India preferred

thereagainst which were marked as C.R. 6473 and 6588 and 6589 of 2005

have been allowed by a learned Single Judge of the High Court by reason of

the impugned Judgment.

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15. In  these  appeals,  except  Veena,  all  other  children  of  Munni  Devi

supported  the  appellant,  although  they  did  not  file  any  application  for

setting aside the said consent decree.

16. Mr.  Jayant  Bhushan,  learned  counsel  appearing  on  behalf  of  the

appellant,  would  submit  that  the  learned  Additional  Civil  Judge,  Senior

Division,  Jagadhari,  having  opined  in  its  judgment  and  decree  dated

30.10.1996  that  not  only  Veena  but  also  the  appellants  and  her  other

brothers and sisters were entitled to recovery of possession of the lands in

suit,  the  purported compromise entered  into  by and between the original

plaintiff  and  the  contesting  defendants  must  be  held  to  be  illegal  and

without jurisdiction.  The learned counsel submitted that for all intent and

purport, the suit was filed by Veena in a representative capacity and, thus, in

absence  of  other  heirs  and  legal  representatives  of  Munni  Devi,  the

compromise petition could not have been accepted.

17. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of

the respondent, on the other hand, would contend :

1) In terms of Order XXIII Rule 1 of the Code of Civil Procedure, it is

the privilege of the plaintiff alone to withdraw the suit at any stage of

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the proceedings and the appellant being only one of the defendants

did not have any locus standi to object thereto.

2) Both the compromise petitions filed in Suit No.185 of 1989 and Suit

No.303 of 1992 entered into by and between the parties should be

treated to be a comprehensive one keeping in view the representative

right, title and interest claimed by them in support of the properties

involved in both the suits and in that view of the matter the appellant

herein being a party to the compromise petition filed in Suit No.303

of 1992 and having accepted the benefit arising out of the same, is

estopped and precluded from challenging the validity or otherwise of

the compromise petition filed in Suit No.185 of 1989.

3) In any view of the matter, the appeal as against the respondent No.19

having been dismissed as his name was deleted at the risk and cost of

appellant by order dated 25.3.2008 and the said order having attained

fanility, this Court should not pass any order which would result in

passing of inconsistent and contradictory decrees.

18. Before adverting to the rival contentions of the parties, we may notice

some provisions of the Code of Civil Procedure (the Code).  Sub-rule (1) of

Rule 1 of Order XXIII and Rule 3 of the Code read as under :

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“1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided  that  where  the  plaintiff  is  a  minor  or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

XXX XXX XXX

3.  Compromise  of  suit.—Where  it  is  proved to the satisfaction of the Court  that  a suit  has been adjusted wholly or in part by any lawful agreement or  compromise   in  writing  and  signed  by  the parties,  or  where  the  defendant  satisfies  the plaintiff in respect of the whole or any part of the subject-matter  of  the  suit,  the  Court  shall  order such agreement, compromise or satisfaction to be recorded,  and  shall  pass  a  decree  in  accordance therewith so far as it  relates to the parties to the suit,  whether  or  not  the  subject-matter  of  the agreement, compromise or satisfaction is the same as the subject-matter of the suit:

Provided that where it is alleged by one party and dented  by  the  other  that  an  adjustment  or satisfaction  has  been  arrived  at,  the  Court  shall decide the question; but no adjournment shall  be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation.—An  agreement  or  compromise which  is  void  or  voidable  under  the  Indian Contract  Act,  1872  (9  of  1872),  shall  not  be deemed to  be  lawful  within  the  meaning  of  this rule.”

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19. It is not a case where the original plaintiff applied for withdrawal of

the suit similicitor.  She did so relying on or on the basis of a compromise

entered  into  by  and  between  the  parties.   If  a  suit  is  to  be  decreed  or

dismissed on the basis of a compromise, even permission to withdraw the

suit pursuant thereto, in our opinion, order XXIII Rule 1 of the Code may

not have any application.  Even in such a case, a permission to withdraw the

suit  could have been given only with notice to the respondents  who had

become entitled to some interest in the property by reason of a judgment and

decree passed in the suit.  The Court for the purpose of allowing withdrawal

of a suit after passing the decree, viz., at the appellate stage, is required to

consider this aspect of the matter.  Veena, although was a plaintiff, did not

claim any exclusive title to the property in herself.  She claimed title to the

property as one of the daughters of Munni Devi.  Interest of the appellant

and her other sisters and brothers also stood on the same footing.  They also,

for all intent and purport, could have independently maintained a suit either

in their individual capacities or jointly.   

20. The claim put forth by Raghbir Singh on the basis of an oral ‘hiba’

purported to have been made by Banu Mal before the Revenue authorities

was found to be tainted with fraud.  A finding of fact was arrived at that no

such transaction had taken place as Banu Mal was seriously ill and had been

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residing  at  some other  place.   The learned Trial  Judge  also  arrived  at  a

finding that before the Revenue Authorities, a misrepresentation had been

made stating that Banu Mal was issueless.   

21. Things as they stand now, there cannot be any doubt or dispute that

the appellant is one of the heirs and legal representatives of Banu Mal being

a daughter of Munni Devi.  She, therefore, indisputably was entitled to a

share in the property of Munni Devi as one of her legal heirs.  Even if Order

XXIII, Rule 1 of the Code of Civil Procedure was applicable, in terms of

Rule 1A of the said Order, the appellant as a defendant in the suit could

have applied for being transposed as a plaintiff in terms of Order I Rule 10

of the Code of Civil Procedure and the Court was bound to pass an order

having  due  regard  to  the  question  as  to  whether  she  had  a  substantial

question to be decided as against any of the other defendants.  Aappellant,

indisputably, claimed and was found to have rightly claimed a share in the

suit property.

Having got  a  decree in  her  favour,  she was entitled  to  protect  the

same.  By reason of an agreement between some of the parties or otherwise,

a litigant cannot be deprived from the fruit of the decree.

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22. Order XXIII, Rule 3 of the Code of Civil Procedure provides that a

compromise decree is not binding on such defendants who are not parties

thereto.  As the appeal has been allowed by the High Court, the same would

not be binding upon the appellant and, thus, by reason thereof, the suit in its

entirety could not have been disposed of.

23. The court has also a duty to prevent injustice to one of the parties to

the litigation.  It cannot exercise its jurisdiction to allow the proceedings to

be used to work as substantial injustice.   

A consent decree, as is well-known, is merely an agreement between

the  parties  with  the  seal  of  the  court  superadded  to  it.   {See  Baldevdas

Shivlal  and  Another v.  Filmistan  Distributors  (India)  P.  Ltd.  and Others

[(1969)  2  SCC  201],  Parayya  Allayya  Hittalamani v.  Sri  Parayya

Gurulingayya Poojari and Ors. [JT 2007 (12) SC 352]}.

24. If a compromise is to be held to be binding, as is well known, must be

signed either by the parties or by their counsel or both, failing which Order

XXIII, Rule 3 of the code of Civil Procedure would not be applicable.

{See Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC 270]}

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In  Dwarka  Prasad  Agarwal  (D)  By  LRS.  and  Another v.  B.D.

Agarwal and Others [(2003) 6 SCC 230], this Court held:

 “32.  The  High  Court  also  failed  and/or

neglected to take into consideration the fact  that the compromise having been entered into by and between the three out  of  four  partners could not have been termed as settlement of all disputes and in  that  view of the matter  no  compromise could have been recorded by it. The effect of the order dated  29-6-1992  recording  the  settlement  was brought  to  the  notice  of  the  High  Court,  still  it failed to rectify the mistake committed by it. The effect of the said order was grave. It was found to be enforceable. It was construed to be an order of the High Court, required to be implemented by the courts and the statutory authorities.

35…Even if the provisions of Order 23 Rule 3 of the  Code  of  Civil  Procedure  and/or  principles analogous  thereto  are held  to  be  applicable  in  a writ proceeding, the Court cannot be permitted to record  a  purported  compromise  in  a  casual manner. It was suo motu required to address itself to the issue as to whether the compromise was a lawful  one  and,  thus,  had  any  jurisdiction  to entertain the same…”  

{See also K. Venkatachala Bhat and Another v. Krishna Nayak (d) by

LRs. and Others [(2005) 4 SCC 117]}.

In  R. Rathinavel Chettiar and Another v.  V. Sivaraman and Others

[(1999) 4 SCC 89], this Court opined :

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 “22. In view of the above discussion, it comes out that  where  a  decree  passed  by the  trial  court  is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that  stage  unless  very  strong  reasons  are  shown that the withdrawal would not affect or prejudice anybody’s vested rights. The impugned judgment of  the  High Court  in  which  a contrary view has been expressed cannot be sustained.”

25. It is also not a case where the compromise can be said to be a family

arrangement.  A family arrangement must be entered into by all the parties

thereto.  Compliance of the requirements laid down in Order XXIII, Rule 3

of the Code of Civil Procedure is imperative in character.  A compromise or

satisfaction must satisfy the conditions of a lawful agreement.

26. Causes of action of both the suits furthermore were different.   The

subject matter of the suit was also different although may be overlapping to

some extent.  If the compromise entered into by and between the parties to

Suit No. 303 of 1999 was to be given effect to, the same for all intent and

purport clearly goes to show that Bhanu Mal had the title over the property.

The learned Trial Judge in Suit No.185 of 1989 having found that Bhanu

Mal did  not  pass his  title  by way of oral  Hiba/gift  in  favour of Raghbir

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Singh, subject to the conditions in the Will, his title must be held to have

been  accepted.   Bhnau  Mal,  therefore,  could  dispose  of  his  property  in

accordance with law.  If Raghbir Singh did not acquire any title by reason of

oral Hiba, on his death, subject to proof of compliance of the terms of the

Will, the same must be held to have vested in Munni Devi and on her death

upon her children.   

27.  Title  to  a  property  must  be  determined  in  terms  of  the  statutory

provision.  If by reason of the provisions of the Hindu Succession Act, 1956

the appellant herein had derived title to the property along with her brothers

and  sisters,  she  cannot  be  deprived  thereof  by  reason  of  an  agreement

entered  into  by  and  between  the  original  plaintiff  and  the  contesting

defendants.  If a party furthermore relinquishes his or her right in a property,

the same must be done by a registered instrument in terms of the provisions

of Indian Registration Act.

28. It is also well known that a suit cannot be withdrawn by a party after

he acquires a privilege.  In R. Ramamurthy Ayer v. Raja V. Rajeswara Rao

[(1972) 2 SCC 721], this Court held :

“12. Coming back to the question of withdrawal of a suit in which the provisions of Sections 2 and 3 of the Partition Act have been invoked we find it difficult  to  accede  to  the  contention  of  the

19

appellant  that  the  suit  can  be  withdrawn  by the plaintiff after he has himself requested for a sale under  Section  2  of  the  Partition  Act  and  the defendant has applied to the court for leave to buy at  a  valuation  the  share  of  the  plaintiff  under Section  3.  In  England  the  position  about withdrawal has been stated thus,  in the Supreme Court Practice, 1970 at p. 334:

“Before Judgment.— Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant  has by the  proceedings  obtained an advantage of which it does not seem just to deprive him.”

As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under Section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to  order  a  valuation  and  after  getting  the  same done to offer to sell the same to such shareholder at the valuation  so made. This  advantage,  which may or may not  fulfil  the juridical  meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has  gained  or  acquired  the  advantage  or  the privilege  of  buying  the  share  of  the  plaintiff  in accordance with the provisions of Section 3(1) it would  only  enable  the  plaintiff  to  defeat  the purpose  of  Section  3(1)  and  also  to  deprive  the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the  court  to  sell  the  property  under  Section  2 instead  of  partitioning  it.  Apart  from  these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendant’s claim which,  according to Crump J., cannot be done even in a suit where the provisions of the Partition Act have not been invoked.”

20

Yet again in  R. Rathinavel Chettiar v.  V. Sivaraman [(1999) 4 SCC

89], this Court, stated the law, thus :

“22. In view of the above discussion, it comes out that  where  a  decree  passed  by the  trial  court  is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that  stage  unless  very  strong  reasons  are  shown that the withdrawal would not affect or prejudice anybody’s vested rights. The impugned judgment of  the  High Court  in  which  a contrary view has been expressed cannot be sustained.”

29. A right to withdraw a suit in the suitor would be unqualified, if no

right  has  been  vested  in  any  other  party.  [See  Bijayananda  Patnaik v.

Satrughna Sahu and Ors. [(1964) 2 SCR 538] and  Hulas Rai Baij Nath v.

Firm K.B. Bass & Co. [(1967) 3 SCR 886].  

30. If  the  contention  of  Mr.  Dwivedi  that  parties  had  entered  into  a

comprehensive  agreement  covering  both the suits  was  correct,  there  was

absolutely no reason as to why the appellant or others were not made parties

to the second consent decree as well.  While entering into a comprehensive

agreement, the parties are bound to see that terms of one agreement do not

21

come in  conflict  with  the  terms and  conditions  of  the  other.   When the

parties have separately entered into more than one agreement, either one is

dependant of the other or both are independent of each other.  In the latter

case, signing of the agreement by the parties or their counsel thereon must

be held to be imperative in character.   

Amteshwar Anand v.  Virender Mohan Singh and Others [(2006) 1

SCC 148], whereupon reliance has been placed by Mr. Dwivedi, is a case of

family settlement.  Three agreements entered into therein were found to be

in consonance with each other.

31. Herein, we are not concerned with the effect of the earlier litigation.

We are also not concerned with regard to the conduct of Smt. Veena Nirvani

vis-à-vis  the appellant  and the other defendants  and/or  as  to  whether  the

litigation was being fought through the lawyers of the same chamber.

Both the suits were compromised.  Indisputably, the date fixed in the

matter was July, 1998.  The impugned compromise petition, however, was

filed  on  25.04.1998.   For  the  aforementioned  purpose,  the  date  was

preponed.   Indisputably, the appellant  was not  informed thereabout.   She

was not given any notice of preponement of the date.  The question as to

whether the appellant  knew thereabout or not is  essentially a question of

22

fact to which we would advert to a little later.  It is, however, difficult for us

to agree with the High Court as also the submissions of Mr. Dwivedi that

the compromise was a comprehensive one.

32. The learned Additional District Judge, on the basis of the materials

brought  on  record  by  the  parties  arrived  at  a  finding  of  fact  that  the

settlement was not a comprehensive one.  He, furthermore, opined that none

of the respondents appeared in the witness box to substantiate the terms and

conditions of the compromise nor did they examine any other witness.  The

purported circumstances that Smt. Veena Nirwani was at the helm of the

affairs  in  respect  of  both the  matters  sought  to  be emphasized  before  us

being not based on any material on record, we are of the opinion that the

finding of the High Court that a comprehensive settlement was arrived at

must be held to be wholly incorrect.   

33. The  High  Court  moreover  was  exercising  its  jurisdiction  under

Article  227  of  the  Constitution  of  India.   While  exercising  the  said

jurisdiction, the High Court had a limited role to play.  It is not the function

of the High court while exercising its supervisory jurisdiction to enter into

the disputed question of fact.  It has not been found by the High Court that

the  findings  arrived  at  by  the  learned  Additional  District  Judge  were

perverse and/ or in arriving the said findings, the learned Additional District

23

Judge failed and/ or neglected to take into consideration the relevant factors

or based its decision on irrelevant factors not germane therefor.  It could

intervene, if there existed an error apparent on the face of the record or, if

any  other  well  known  principle  of  judicial  review  was  found  to  be

applicable.  

{See Yeshwant Sakhalkar and Another v. Hirabat Kamat Mhamai and

Another [(2004) 6 SCC 71]}.

It  is  on  the  aforementioned  backdrop,  we  may  consider  the  legal

effect of non-signing of the compromise petition by the appellant herein as

also the respondent Nos. 4 to 8 herein.

34. We  have  noticed  hereinbefore  that  not  only  the  properties  were

different, the nature of the litigations was different.  Even the parties were

different.   Both  the  compromise  petitions  do  not  refer  to  each  other.

Assuming  that  the  parties  knew  thereabout,  it  is  beyond  anybody’s

comprehension as to why signature of all the parties were not obtained for

the aforementioned purpose, if not for any other reason, but to satisfy the

requirements of law.   

35. Appeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999

were pending before different  courts  and in  that  view of  the  matter  it  is

24

difficult to agree with the High Court that only for that purpose, the date in

the appeal was preponed.  Even otherwise, in law, they are not members of

the  same  family.   They  have  been  inherited  definite  share  from  their

predecessors.   

36. The  question  of  estoppel  and/or  election  as  also  the  doctrine  of

approbate or reprobate, whereupon reliance has been placed, has exceptions,

one of them being that there is no estoppel against statute.

37. Submission of the learned senior counsel that Veena and the appellant

were in the same boat as would appear from the fact that they had engaged

lawyers from the same chamber and, in fact, the lawyer of the appellant had

no independent practice itself would go to show that she knew about both

the compromise petitions cannot be accepted.  A counsel appearing for a

party is  expected  to  be independent.   There  is  no presumption  that  only

because  two  lawyers  are  practicing  from the  same chamber,  they would

breach their  confidentiality  or  commit  some act  which  would  amount  to

professional  misconduct.   Only  because  two  compromise  petitions  were

filed on the same day or Veena was a party to both of them, in our opinion,

would not by itself lead to any inference that appellant also knew about the

second compromise through her counsel.

25

We  would,  however,  deal  with  the  question  of  her  acquiring

knowledge thereof at appropriate stage.

38. Whether  the  preponement  of  the  date  was  only  at  the  instance  of

Veena or at the instance of both the parties to the consent is a matter which

is of little relevance so far as this Court is concerned inasmuch as the only

issue which would arise for our consideration is the consequences of such

preponement.  If the hearing of a case is preponed, it should be done with

notice to all the parties.  It is not the case of the first respondent that notice

had been given to all the parties or otherwise also they were aware thereof.

39. In that view of the matter, it is difficult to accept the submission of

Mr. Dwivedi that the appellant is estopped and precluded from raising the

said contention of violation of the principles of natural justice or that only

because he had sold some property, she cannot be allowed to approbate and

reprobate.

Our attention has been drawn to a recent decision in Kashmir Singh v.

Union of India & Ors. [(2008) 7 SCC 259] wherein this Court observed :

“75. By reason  of  the  Notification  dated  19-10- 1978, the  Central  Government  has not  delegated its  power.  The  1966  Act  has  an  extraterritorial application.  It  is  not  in  dispute  that  no  law  has been enacted either by the State of Haryana or by

26

the State of Himachal Pradesh. In absence of any law  having  been  enacted  to  the  contrary,  the functions under the 1966 Act must be performed by some authority. The Central Government with the  consent  of  the  State  of  Haryana  has  merely nominated the State of Punjab to do so. By reason thereof,  it  has  not  delegated  any  power.  Sub- section  (1)  of  Section  72  of  the  1966  Act envisages  a  direction  upon  the  Central Government. Such a direction has been issued by reason  of  the  impugned  notification.  When  a power has been conferred upon the State of Punjab by the Central Government, it exercises a statutory power. It would, therefore, not be a case where the functions of the State Government must be held to be confined to its territorial jurisdiction.”

The principle enunciated therein is unexceptional but the same has no

application in the factual matrix obtaining in this case.

40. The  submission  of  Mr.  Dwivedi  that  by reason  of  conduct  of  the

appellant,  they would be deemed to have ratified the second compromise

also cannot be accepted.  It is not a ratification of a contract.  If ratification

has to be done, all should be parties thereto.  If the court had no jurisdiction

to accept the compromise in defiance of the mandatory provisions contained

in  Order  XXIII  Rule  3  of  the  Code  of  Civil  Procedure,  the  question  of

invoking  the  doctrine  of  ratification  would  not  arise.   The  doctrine  of

ratification may be applicable in the realm of private law regime but not for

the purpose of amendment or modification of a decree.  Reliance has been

27

placed by Mr. Dwivedi on  Jai Narain Parasrampuria v.  Pushpa Devi Saraf

[(2006) 7 SCC 756], wherein it has been held :

“27. The  Company  upon  incorporation  has accepted  the  contract  and  communicated  such acceptance  to  the  other  party.  Besides  that, purchase of the property was for the purpose of the Company. Submissions of Mr Sudhir Chandra that acquisition  of  a  property  for  the  benefit  of  the Company  must  find  place  in  the  articles  of association of the Company, is wholly misplaced. What is meant by acceptance of the contract by the Company  which  is  to  be  warranted  by  its incorporation,  is  that  it  is  not  ultra  vires the purpose  for  which  the  Company  had  been incorporated. The distinction sought to be made by the  learned  counsel  between  Section  27  of  the Specific  Relief  Act,  1877 and  Section  19  of  the 1963 Act is  not of much significance. Under the 1877 Act, not only ratification and adoption of the contract  was mandatory, such contract  was to be warranted by the terms of the incorporation. The words “ratified and adopted” have been dropped from the  main  section  and  in  Section  19  of  the 1963  Act,  a  proviso  has  been  added  that  the company  has  accepted  the  contract  and communicated such acceptance to the other party of  the  contract.  An  express  ratification  of  the contract, therefore, is no longer warranted. In view of  the  fact  that  the  Company,  in  the  suit  filed against Verma, sought for a declaration that it was the  owner  of  the  property,  the  same,  in  our opinion,  would  amount  to  acceptance  of  the contract  and communication  thereof  to  the  other party thereto.”

28

The dicta  laid  down therein  itself  suggests  that  the said  principles

were laid down in the context of the provisions of the Specific Relief Act.

In T.V.R. Subbu Chetty’s Family Charities v. Raghava Mudaliar [AIR 1961

SC 797], whereupon again Mr. Dwivedi places reliance, this Court applied

the said doctrine against a presumptive reversioner having regard to the fact

and circumstances thereof.  We are not concerned with such a case.  

41. This  brings  us  to  the  question  of  limitation.   Article  123  of  the

Schedule appended to the limitation Act reads, thus :

“Description of suit Period of limitation

Time from which period begins to run

123 .

To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. Explanation.  --  For  the purpose  of  this  article, substituted  service  under rule  20  of  Order  V of  the Code  of  Civil  Procedure, 1908 (5  of  1908)  shall  not be  deemed  to  be  due service.

Thirty days The date of the decree or where  the  summons  or notice  was  not  duly served,  when  the applicant had knowledge of the decree.”

42. There cannot be any doubt that even if an order is void or voidable,

the same must be set aside, as has been held by this Court in M. Meenakshi

29

v.  Metadin Agarwal [(2006) 7 SCC 470] and  Sultan Sadik v.  Sanjay Raj

Subba [(2004) 2 SCC 377].   

43. It is not a case where the Court lacked inherent jurisdiction.  It had

jurisdiction with regard to subject matter of appeal.

In Rajasthan State Road Transport Corporation and others  v.  Zakir

Hussain [(2005) 7 SCC 447], this Court held :

“21. It  is  a  well-settled  principle  of  law as  laid down  by  this  Court  that  if  the  court  has  no jurisdiction,  the  jurisdiction  cannot  be  conferred by any order  of court.  This Court  in the case of A.R. Antulay v.  R.S. Nayak,  AIR paras  40 to  42 wherein  it  is,  inter  alia,  held  and  observed  as under:

‘38[40].  …  This  Court,  by  its  directions could  not  confer  jurisdiction  on  the  High Court  of Bombay to try any case which it did not possess such jurisdiction….

39[41].  … The power  to  create  or enlarge jurisdiction  is  legislative  in  character…. Parliament  alone can  do  it  by law and  no court,  whether  superior  or  inferior  or  both combined can enlarge the jurisdiction of a court  or  divest  a  person  of  his  rights  of revision and appeal. …

40[42]. … But the superior court can always correct  its  own error  brought  to  its  notice either  by  way  of  petition  or  ex  debito justitiae. See Rubinstein’s  Jurisdiction and Illegality.’”

30

The limitation, however, in a case of this nature would not begin to

run from the date of knowledge.   

 In State of Punjab and Others v. Gurdev Singh [(1991) 4 SCC 1], this

Court held:

“10. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the  order  against  him  is  inoperative  and  not binding  upon  him.  He  must  approach  the  court within the prescribed  period  of  limitation.  If  the statutory time limit expires the court cannot give the declaration sought for.”

44. Mr. Jayant Bhushan would submit that the limitation would start to

run from the date of knowledge.  It is difficult to accept the said contention.

Article 123 of the Limitation Act is in two parts.  In a case where summons

have been served upon a party, the first part shall apply.  However, in a case

where the summons have not been served, the second part shall apply.  In

this case, summons were served upon the appellant.  They knew about the

proceedings.  They had engaged a lawyer.  Indisputably, the case was fixed

in  July  1998.   The  only  question,  which  would,  thus,  arise  for  our

consideration is the effect of the preponement of the date.

31

45. If the compromise has been accepted in absence of all the parties, the

same would be void.  But if the same having resulted in grant of a decree,

the  decree  based  on  compromise  was  required  to  be  set  aside.   The

compromise may be void or voidable but it is required to be set aside by

filing a suit within the period of limitation.  {[See  Mohd. Noorul Hoda v.

Bibi  Raifunnisa  & Ors. [(1996) 7 SCC 767]}.  Limitation is  a statute of

repose.   If a  suit  is  not  filed within  the period of limitation,  the remedy

would  be barred.   As appellant  had  appeared in  the appeal,  as  indicated

hereinbefore, the first part shall apply.  The suit was filed on 28.2.2002, i.e.,

after a gap of four years.  There is no reason as to why the factum in regard

to  passing  of  the  decree  could  not  have  been  known  in  July  or  soon

thereafter.

46. The  High Court  has  arrived at  a finding of  fact  that  the  appellant

cannot be said to have acquired knowledge about the passing of the decree

on 7.2.2002, stating

“… If the said compromise deed dated 24.4.1998 was passed by preponing the appeal fixed in July 1998  her  counsel  Shri  Lalit  Gupta  could  have come to know in July 1998 itself  which was the original date fixed in this appeal that this appeal was preponed and compromise decree was passed on 25.4.1998.  He could have informed Smt. Sneh Gupta  Respondent  immediately  thereafter.   No reasons have been given by Shri Lalit  Gupta for

32

not  deriving  the  knowledge  of  order  dated 25.4.1998  in  July  1998  when  the  file  was originally  fixed  and  when  he  was  supposed  to appear  in  the  Appellate  Court.   He has  also  not given the reasons why he did not inform his party after  coming to know in  July 1998 that  the said appeal  was  preponed  to  25.4.1998  and  was decided as compromised.”

It is interesting to notice that the appellant while examining herself as

AW-2, accepted  that  a compromise had been arrived  at  Panipat  in  April

1998, stating :

“It  is  correct  that  a  compromise  settlement  was arrived at  in  Panipat  in  April  1998 but  I  do not know  details  of  it.   I  do  not  know  whether  in pursuance  of  that  compromise,  all  the  litigation were  settled  and  withdrawn  from  different courts…”

47. Mr. Jayant Bhushan has placed strong reliance upon a judgment of

this Court in Nahar Enterprises v. Hyderabad Allwyn Ltd. & Anr. [(2007) 9

SCC 466].  He placed reliance on the following paragraphs :

“4. The respondent herein filed a suit for recovery of a sum of Rs.1,87,904.62 with future interest at the rate of 18.5% per annum against the appellant. It  appears  that  in  the  summons  sent  to  the appellant,  10-10-1988  was  fixed  for  his appearance.  However,  as  the  summons  had  not been served, the court adjourned the matter to 2- 12-1988. Summons were served on the appellant

33

on 14-10-1988, but according to him a copy of the plaint was not annexed thereto. He sent a telegram on  17-10-1988  and  also  a  letter  to  the  court concerned  but,  admittedly,  the  same  was  not responded  to.  Without  issuing  any  further summons fixing another date for his  appearance, the  court  fixed  a  date  and  having  found  the appellant  absent  on  that  date,  fixed  another  date for ex parte hearing. On 13-12-1988 the suit was decreed with costs.

5. An execution case was filed by the respondent herein to execute the said decree. According to the appellant,  the  bailiff  came  to  serve  a  copy  of summons  on  him  on  2-12-1991.  The  said summons having been served upon the appellant, he  came to  learn  that  ex  parte  decree  has  been passed. An application for setting aside the said ex parte decree was filed on 13-12-1991. By an order dated  17-1-1992  the  learned  Judge,  City  Civil Court,  Hyderabad  dismissed  the  said  application inter alia opining:

(1) …  

(2) …

(3) An ex parte decree having been passed on 13-12-1988  and  an  application  for  setting aside the ex parte decree having been filed on  13-12-1991,  the  same  was  barred  by limitation.

XXX XXX XXX

12. The  third  ground  on  which  the  learned  trial Judge dismissed  the application  for  setting  aside the  ex  parte  decree  was  that  it  was  barred  by limitation. The said ground in our opinion, is also without  substance.  The  summons  had  not  been duly  served  upon  the  appellant  inasmuch  as  the provisions of Order 5 Rule 2 CPC or provisions of

34

Order 9 Rule 6(1)(c) had not been complied with. In that  view,  the  second  part  of  Article  123,  in terms whereof  an applicant  would be deemed to have  knowledge  of  passing  of  the  said  ex  parte decree would be the date from which the limitation will begin to run, would be attracted in the instant case and not the first part thereof.”

In  that  case,  the  copy  of  the  plaint  was  not  annexed  with  the

summons.  Summons was served after the date fixed in the suit  expired.

The Court  had in that  situation under a legal  obligation to serve another

summons fixing another date of hearing in terms of Order V, Rule 2 of the

Code of Civil Procedure.  It was in the aforementioned fact situation, the

Court held that the summons served was not in accordance with law and,

thus, the second part shall apply.  Such is not the case here.   

Reliance has also been placed by Mr. Jayant Bhushan on a decision of

this case in Manick Chandra Nandy v. Debdas Nandy & Ors. [(1986) 1 SCC

512].  The law in that case itself was laid down in the following terms :

“11. Under Article  123 in the Schedule to the Limitation Act, 1963, the period of limitation for  making  an  application  to  set  aside  a  decree passed ex parte is thirty days from the date of the decree  or  when  the  summons  or  notice  was  not duly served, when the applicant had knowledge of the  decree.  The  question  of  knowledge  of  the decree  by  the  applicant  only  arises  where  the summons or notice was not been duly served.”

35

However, in the facts of that case, it was found that summons had not

been served. In Pannalal v. Murarilal [(1967) 2 SCR 757], this Court held :

“Under Article 164 of the Indian Limitation Act, 1908, the period of limitation for an application by a  defendant  for  an  order  to  set  aside  a  decree passed ex-parte was 30 days from “the date of the decree or when the summons was not duly served, when the applicant had knowledge of the decree”. The  onus  is  on  the  defendant  to  show  that  the application  is  within  time  and  that  he  had knowledge  of  the  decree  within  30  days  of  the application.   If  the  defendant  produces  some evidence  to  show  that  the  application  is  within time, it  is  for the plaintiff  to rebut  this  evidence and  to  establish  satisfactorily  that  the  defendant had knowledge of the  decree more than 30 days before the date of the application.”

48. Mr.  Jayant  Bhushan,  then  submits  that  as  the principles  of  natural

justice had been violated, the judgment would be a nullity.  Strong reliance

in  this  behalf  has  been  placed  on  A.R.  Antulay v.  R.S.  Nayak  &  Anr.

[(1988) 2 SCC 602], wherein, it was stated :

“55. Shri  Jethmalani  urged  that  the  directions given  on  February  16,  1984,  were  not  per incuriam. We are unable to accept this submission. It  was  manifest  to  the  Bench  that  exclusive jurisdiction created under Section 7(1) of the 1952 Act  read  with  Section  6  of  the  said  Act,  when brought to the notice of this Court, precluded the

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exercise  of  the  power  under  Section  407  of  the Code. There was no argument, no submission and no  decision  on  this  aspect  at  all.  There  was  no prayer in the appeal which was pending before this Court for such directions. Furthermore, in giving such  directions,  this  Court  did  not  advert  to  or consider  the  effect  of  Anwar  Ali  Sarkar  case which was a binding precedent. A mistake on the part  of  the  court  shall  not  cause  prejudice  to anyone. He further added that the primary duty of every  court  is  to  adjudicate  the  cases  arising between  the  parties.  According  to  him,  it  is certainly  open  to  a  larger  Bench  to  take  a  view different from that taken by the earlier Bench, if it was  manifestly  erroneous  and  he  urged  that  the trial  of  a  corrupt  Chief  Minister  before  a  High Court, instead of a judge designated by the State Government  was  not  injurious  to  public  interest that it should be overruled or set aside. He invited us  to  consider  two  questions:  (1)  does  the impugned  order  promote  justice?  and  (2)  is  it technically  valid?  After  considering  these  two questions,  we are  clearly of  the  opinion that  the answer to both these questions is in the negative. No  prejudice  need  be  proved  for  enforcing  the fundamental  rights.  Violation  of  a  fundamental right itself renders the impugned action void. So also  the  violation  of  the  principles  of  natural justice  renders  the  act  a  nullity.  Four  valuable rights, it appears to us, of the appellant have been taken away by the impugned directions:

‘(i) The right to be tried by a Special Judge in accordance  with  the  procedure  established by law and enacted by Parliament.

(ii) The  right  of  revision  to  the  High  Court under  Section  9  of  the  Criminal  Law Amendment Act.

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(iii) The right of first appeal to the High Court under the same section.

(iv) The right to move the Supreme Court under Article  136 thereafter  by way of  a second appeal, if necessary.’”

We  are  concerned  herein  with  a  question  of  limitation.   The

compromise decree, as indicated hereinbefore, even if void was required to

be set aside.  A consent decree, as is well known, is as good as a contested

decree.  Such a decree must be set aside if it has been passed in violation of

law.  For the said purpose, the provisions contained in the Limitation Act,

1963 would be applicable.  It is not the law that where the decree is void, no

period of limitation shall be attracted at all.

In State of Rajasthan  v. D.R. Laxmi [(1996) 4 SCC 445], this Court

held :

“10.  The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events.  Though the order  may be void, if the party  does  not  approach  the  Court  within reasonable time, which is always a question of fact and  have  the  order  invalidated  or  acquiesced  or waived,  the  discretion  of  the  Court  has  to  be exercised  in  a  reasonable  manner.  When  the discretion  has  been  conferred  on  the  Court,  the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The

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net result  is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not  only  possession  had  already  been  taken  but reference  was  also  sought  for;  the  award  of  the Court  under  Section  26  enhancing  the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become  final  and  the  compensation  determined also  having  become  final,  the  High  Court  was highly  unjustified  in  interfering  with  and  in quashing  the notification  under Section 4(1)  and declaration under Section 6.”

Yet again, in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470],

this Court held :

“18. It is a well-settled principle of law that even a void  order  is  required  to  be  set  aside  by  a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not  non  est.  An  order  cannot  be  declared  to  be void in a collateral proceeding and that too in the absence  of  the  authorities  who were  the  authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities.”

Yet again, in Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377],

this Court held :

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“39. An order may be void for one and voidable for the other. An invalid order necessarily need not be  non  est;  in  a  given  situation  it  has  to  be declared as such. In an election petition, the High Court was not concerned with the said issue.”

49. Even otherwise, we do not think that any error has been committed by

the High Court in arriving at the finding that the appellant had knowledge of

the passing of the compromise decree much earlier.  She did not file any

application for condonation of delay.  She filed two more applications for

recall  of  the  order  dated  6.11.2004  in  other  enacted  appeals.   Those

applications were also filed after expiry of the period of limitation and none

of  those  applications  were  also  accompanied  with  an  application  for

condonation  of  delay.   In absence of  any application  for  condonation  of

delay, the Court had no jurisdiction in terms of Section 3 of the Limitation

Act,  1963 to  entertain  the application for  setting  aside the decree.   [See

Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66]; and

Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52].

50. For the reasons aforementioned, there is no merit in this appeal.  The

same is  dismissed  accordingly.   There  shall,  however,  be no order  as  to

costs.

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………………………….J.        [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi;

February 17, 2009

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