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Bhima Rama Jadhav Vs. Abdul Rashid - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 73 of 1957
Judge
Reported inAIR1961Kant175; AIR1961Mys175; ILR1960KAR652
ActsCode of Civil Procedure (CPC), 1908 - Order 23, Rule 3; D.A.R. Act - Sections 150; Hereditary Offices Act, 1874 - Sections 5; Transfer of Property Act - Sections 10
AppellantBhima Rama Jadhav
RespondentAbdul Rashid
Appellant AdvocateG.D. Shirgurkar, Adv.
Respondent AdvocateR.V. Jahagirdar, Adv.
Excerpt:
.....to alienate the property, then the rule that there can he no estoppel against a statute would have come into operation. what is complained is that the decision, no doubt based on a compromise is wrong as it embodies an illegal contract. the compromise decree is as good a decree as a decree passed after contest and the same is valid and binding till it is set aside......the defendants nos. 1 and 2 should not raise dispute of any nature.'ignoring the said compromise decree piraji again filed civil suits nos. 406, 407 and 408 of 1946 for possession of survey numbers 188/1a, 188/1b and 188/2 against the present plaintiff, the present defendant, pirsab and krishnan respectively; those suits were withdrawn; the present plaintiff resisted the suit filed against him among other grounds, on the ground that the same is barred by the compromise decree in c. s. no. 1017/45 (ex. 62).3. the courts below have held that the sale deed in favour of the defendant is void as it contravened the provisions of para ii of schedule iii, c. p. c. the correctness of that finding was not canvassed in this court. what is urged is that the plaintiff is estopped from contesting.....
Judgment:

1. The point for decision is whether the plaintiff-appellant is estopped, in view of the proceedings in Civil Suit No. 1017 of 1945 on the file of the learned Civil Judge, First Class, Bijipur, from contending that the sale deed executed by him in favour of the defendant on 11-7-1941 (Ex. 59) is invalid and he is entitled to possession of the suit property. Other contentions raised in the pleadings have been decided by the Courts below and not reopened in this Court.

2. The antecedent facts, relevant for the purpose of this appeal, as determined by the Courts below fire as follows : Survey No. 182 of Dyaberi village measuring 27 acres and 9 guntas and assessed at Rs. 12/- belonged to the plaintiff's uncle piraji; the suit property i.e. S. No. 188/2 measuring 9 acres and 3 guntas is a portion of that Survey Number, this was sold by piraji to the plaintiff for Rs. 700/-as per Exhibit 60 dated 12-9-1939; the entire S. No. 188 was subject to an earlier mortgage in favour of one Jamunabai Vishnudas Gujar, Piraji filed Civil Suit No. 133 of 1938 against Jamunabai for accounts and redemption under S. 150 of the D.A.U. Act; the decree in that suit directed the mortgagor' (Piraji) to pay a sum of Rs. 1200/- together with costs and future interest in annual instalments commencing from 1-4-1940; as the mortgagor failed to pay the instalments due, the mortgagee (Jamunabai) filed Darkast No. 480 of 1940 and had the execution transferred to the Collector for the sale of the mortgaged property or a sufficient portion thereof as per Exhibit 51; when the Darkast in question was pending before the Collector, the plaintiff who had purchased the suit property under Ex. 60 sold the same to the defendant as per Exhibit 59 dated 11-7-1941; oven before the defendant purchased the suit properly, from the plaintiff, Piraji had sold another portion of S. No. 188 i.e. S. No. 188/1B to one Pirsab on 3-5-1941 who in turn sold the same to the plaintiff on 24-11-1941; on 7-6-1945, Piraji sold still another portion of S. No. 188 i.e. No. 188/1A to one Krishnan; on 28-6-1945 Piraji instituted Civil Suit No. 1017 of 1945 against the present plaintiff (Bhima Rama Jadhav), the present defendant (Abdul Bashid Saheb) and Pirsab for a declaration that the alienations effected by him are illegal and void ab initio as they contravened the provisions contained in para 11 of Schedule III of the Civil Procedure Code, having been effected when the Darkast filed by Jamunabai was pending before the Collector; that suit ended in a compromise, the compromise was made a decree of Court on 12-9-1945 (Ex. 62); thereunder Piraji admitted the plaintiff's title to S. No. 188/1B as well as the defendant's title to S. No. 188/2; to this compromise all the parries to Civil Suit No. 1017/45 had joined; under the compromise in question Piraji was paid an additional sum of Rs. 700/- by the present plaintiff and a sum oE Rs. 300/- by the present defendant. The relevant portion of the compromise reads as follows ;

'S. No. 188/2 measuring 9 acres and 3 gunlas and assessed at Rs 4/- of the said village (Dyabari) which is in possession of defendant No. 2 (defendant in this suit) has been independently purchased by defendant No. 2 from defendant No. 1 (present plaintiff). In order that there should not be any dispute between the parties with respect to that land defendant No. 2 (present defendant) has paid Rs. 300/- to the plaintiff Piraji out of Court. Therefore defendant No. 2 should make wahivat of S. No. 188/2 as an absolute owner. To that either the plaintiff or the defendants Nos. 1 and 2 should not raise dispute of any nature.'

Ignoring the said compromise decree Piraji again filed Civil Suits Nos. 406, 407 and 408 of 1946 for possession of Survey Numbers 188/1A, 188/1B and 188/2 against the present plaintiff, the present defendant, Pirsab and Krishnan respectively; those suits were withdrawn; the present plaintiff resisted the suit filed against him among other grounds, on the ground that the same is barred by the compromise decree in C. S. No. 1017/45 (Ex. 62).

3. The courts below have held that the sale deed in favour of the defendant is void as it contravened the provisions of para II of Schedule III, C. P. C. The correctness of that finding was not canvassed in this Court. What is urged is that the plaintiff is estopped from contesting the validity of the sale deed in question, in view of--the compromise decree in C. S. No. 1017/45. The trial Court negatived this contention. But the first appellate Court upheld the same.

It is clear from Ex. 62 that the plaintiff as well as his uncle Piraji did represent to the defendant that they will not challenge the validity of Exhibit 59 and thus made the defendant pay a further sum of Rs. 300/-. Can the plaintiff be permitted, to resile from the representation in question? It is urged On behalf of the plaintiff that the compromise Ex. 62 was merely a devise to validate an invalid sale; in essence Ex. 62 was only a contract and a contract embodying an illegal term and as such it must be ignored.

4. Before proceeding to consider the effect of the compromise decree (Ex, 62) we may bear in mind the fact that in the present suit, the said compromise decree was not sought to be set aside on the ground that it embodied an illegal transaction or on the ground that it amounted to an alienation, coining within the mischief of para 11 of Schedule III, C. P. C.

On the other hand attempts were made in the trial Court to get the compromise decree set aside on the ground that the same is vitiated by fraud and undue influence. This attempt miserably failed and that part of the plaint case was given up in the first appellate Court, Hence this Court is not required to consider whether the compromise decree in question is liable to be set aside for any reason. In other words we have to proceed on the basis that its effectiveness remains unimpaired.

5. The first appellate Court relying on the decision in Govind Waman v. Murlidhar Shrinivas, : AIR1953Bom412 , came to the conclusion that a compromise decree passed by a Court of competent jurisdiction cannot be ignored as nullity even though it embodied terms contrary to law; and the same is binding as between parties thereto unless it is set aside by a proper proceeding. In that case Gajendragadkar, J.. (as he then was) speaking for the Court observed:

'We think that a consent decree passed by a Court of competent jurisdiction cannot be treated on the same footing as a contract between the parties. It is true that before a Court passes a consent decree, it can and should examine the lawfulness and validity of the terms of the proposed compromise. But once that stage is passed and a decree follows, Different considerations arise. Indeed, Mr. Murdeshwar has not cited before us any decision of this Court which actually decided that a compromise decree which contains a term contrary to law is for that reason a nullity. On the contrary, as we have just pointed out, a large number of reported judgments of this Court have taken a contrary view. Therefore, in our opinion, the lower appellate Court was right in coming to the conclusion that despite the tact that one of the terms of the compromise decree is opposed to the provisions of Section 10 of the Transfer of Property Act, the decree is still binding between the parties and cannot be said to be a nullity. If it is not a nullity, its terms must be enforced and the plaintiff would be entitled to claim possession of the property.'

Similar is the view taken in Basangouda Giri yeppagouda v. Basalingappa Mallangouda, 38 Bom LR 593: (AIR 1936 Bom 301). In that case the Court held: 'that the plea of estoppel by res judicata may prevail even when the result of giving effect to it will be to sanction what is illegal in the sense of being prohibited by statute.'' They further held that the consent decree would act as an estoppel until it was set aside by a proper suit, even though the effect of it might be to sanction the alienation of Watan and watan rights which is prohibited by Section 5 of the Hereditary Offices Act, 1874.

Broomfield, J. who delivered the leading judgment in that case repelled the contention that a compromise decree has no greater force or effect than a contract. In the course of his judgment he dealt with the arguments founded on the basis of the decision of the Judicial Committee in Great Worth West Central Rly v. Charlebois, (1899) AC 114. His Lordship observed

'The concluding sentence of the passage which I have cited (from the above case) 'such a judgment cannot be of more validity than the invalid contract on which it was founded', might at first sight perhaps appear to suggest that such a decree would be a nullity which it is not necessary to set ' aside. But that is not in fact what was held in the case, and as I have said, the appeal arose in a suit to impeach the judgment.'

It was held in Basangouda's case, 38 Bom LR 593: (AIR 1936 Bom 301) that a compromise decree is good unless and until it is set aside according to law. I am in respectful agreement with that view. A consent decree has many of the characteristics of a contract but it is not the same thing as a contract. The Court puts its seal of approval to the compromise arrived at. As observed by Gajendragadkar, J. in Govind Waman's case, : AIR1953Bom412 , it is the duty of the Court to see whether the compromise in question contains any illegal terms; if it does contain such terms the Court has not only the right but has the duty to refuse to make it a decree of Court. It is not the law that the Court is bound to accept every compromise and make it a decree of Court.

If it has accepted a compromise and made it a decree of the Court then the compromise ceases to be a contract simpliciter; it becomes a decree of Court. The oft quoted observation that a Court of competent jurisdiction can decide a thing rightly as well as wrongly, though might look odd at first sight, embodies an important principle of law i.e. the finality of decisions. It is human to err and judges are human. Their errors may be errors of facts as well as errors of law. If they commit any error either of fact or of law, the same can be corrected only by following the procedure laid down by law.

No one can ignore a decree of a competent Court unless it is void under law. It is true that a compromise decree is open to attacks which are available against a contract and as such, it may be got set aside within the period of limitation prescribed, on grounds which may be sufficient to invalidate a contract. But the fact remains that it must be got set aside and that is what has not been done in this case. The appellant requests this Court to ignore that decree. But that cannot be done.

6. Sri B. V. Krishnaswamy Rao, the learned counsel for the appellant contested the correctness of the decisions in Govind Waman's case, : AIR1953Bom412 and in Basangouda's case, 38 Bom LR 593: (AIR 1936 Bom 301). We urged that there can be no estoppel against a statute and in such a case the doctrine of approbate and reprobate also cannot apply. In this connection he invited my attention to the decision in Ganesh. Shankarbhat v. Gangabai Shambhubhat, AIR 1939 Bom 114. The rule that there can be no estoppel against statute is a well established rule.

But that rule has no application to the facts of the present case. If the defendant had contended that the plaintiff is estopped from contesting the validity of Ex. 59 on the ground that he had made representations therein to the effect that he had good title to alienate the property, then the rule that there can he no estoppel against a statute would have come into operation. In Ganesh Shankarbhat's case, AIR 1939 Bom 114, the disputes between the parties were settled by means of arbitration.

But the award was never made a decree of Court though it was filed into Court. Some steps were taken in pursuance of the award. But when one of the parties to the award wanted to execute the award, the Courts refused to do so on the ground that there was no decree. The plea of estoppel was negatived holding that the parties cannot by agreement create a decree which did not conform to the requirements of law.

The case before us does not come within that branch of law. In this case, a competent Court has decided a dispute. The decree drawn up is in accordance with law. The correctness of the procedure adopted is not in question. What is complained is that the decision, no doubt based on a compromise is wrong as it embodies an illegal contract. In this case para 11 of schedule III of C. P. C. comes in incidentally and not directly, hence no question of estoppel against that statute arises.

7. Next reliance was placed on the decision in Ambu Nuir v. Kelu Nair : AIR1930Mad305 for the proposition that an illegal term in a compromise decree is unenforceable. That decision followed an earlier decision of the same High Court in Lakshmanswamy Naidu v. Rangamma, ILR 26 Mad 31. In Govind Waman's case, : AIR1953Bom412 . Lakshimanswamy Naidu's case, ILR 26 Mad 31 was considered and dissented. It was observed therein:

'The first case to which he (the learned counsel for the appellant) has invited our attention is the decision of the Madras High Court in ILR 26 Mad 31. Dealing with a compromise decree which permitted the sale of an office attached to a temple, their Lordships of the Madras, High Court held that the said decree is a nullity. According to the learned Judges when a decree is based upon an agreement of compromise and when there is nothing more on the part of the Court than a mere adoption of the contract, the Court must he taken to have adopted the contract with all its incidents. If a part of the contract is unlawful, this infirmity of the contract would make the decree itself infirm in effect. With respect, if this view is correct, it would always be open to the judgment-debtor to resist execution by challenging the legality or validity of the decree in execution proceedings. In our opinion, such pleas cannot be raised and entertained in execution. It is only if the decree is a nullity that the executing Court may refuse to execute it. This limited jurisdiction is however exercised where decrees are passed by Courts Without jurisdiction or are otherwise patently illegal or, e.g. when they are passed against a dead person. In this connection, it is necessary to distinguish between decrees which are illegal and void and those that are contrary to law. In our opinion, the decrees falling in the latter category are binding between the parties unless they are set aside in proper proceedings'.

In my judgment the Madras decisions cited before do not lay down the law correctly.

8. A Bench of this Court of which I was a member had to consider the validity of the decree Ex. 62 in S. A. No. (B) 156 of 1956. The judgment of the Court was delivered by me. It was held therein that the decree in question in so far we were. concerned in that case was not valid and binding. In that case we were dealing with one of the alienations effected by Piraji which was also the subject matter of the compromise in Ex. 62. We held that the impugned sale deed is void as it contravened' para 11 of Schedule III, C. P. C. Further we rejected the plea of estoppel with the following obsevations:

'But Sri Datar, the learned counsel for the ap-pellant, contended that as per the compromise, the parties settled a bona fide dispute; the compromise decree is as good a decree as a decree passed after contest and the same is valid and binding till it is set aside. He asked us to distinguish between? decrees which are illegal and void and those that are contrary to law. He urged that the decrees falling, under the latter category are binding on the parties. thereto unless they are set aside in proper proceedings. According to him, the decree with which we arc concerned in this case is not an ab initio void decree but it is only a decree contrary to law. In support of his contention, he cited numerous decisions i.e. : AIR1953Bom412 , Chhaganlal Kisboredas-v. Bai Harkha, ILR 33 Bom 479 and Sailendra Narayan Bhanja v. State of Orissa, (S) AIR 1956 SC 340. We have not found it necessary to examine in this case whether the consent decree in question is a void or an illegal decree or whether it is merely opposed to law, as in the suit under appeal the plaintiff had specifically prayed for an adjudication that the same, is not valid and binding against him. Even according to Sri Datar, a decree which is contrary to law can be set aside or declared to be void, on that sole ground. That is exactly the relief prayed for by the plaintiff. Hence we are of the opinion that the compromise decree in question cannot be sustained.

If in the present suit, as in that suit, the plaintiff had attacked the validity of the decree, Ex. 62, on the ground that it contained illegal terms then probably the result would have been different. From the facts enumerated earlier it appears that the plaintiff is one of those who attempts to thrive by litigation. The fact that he is caught in the cobwebs-of law is not a matter of regret in this case.

9. In the result, the appeal fails and the sameis dismissed with costs.

10. Appeal dismissed:


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