Consent decree

Suit for declaration was filed by respondents/plaintiffs challenging notice issued by petitioners / Local Government relating to enhancement of rent/ lease amount

Trial Court decreed the suit and during execution of decree, petitioner / Local Government offered to issue fresh lease contract

Respondents/ plaintiffs objected to issuance of fresh lease

Executing Court and Lower Appellate Court allowed objections of respondents / plaintiffs

Validity

In the present case the consent decree was not executable

Decree passed in favour of respondents / plaintiffs was a nullity in the eye of law and its operation ran contrary to express provisions of law

High Court in exercise of Constitutional jurisdiction set aside orders passed by two Courts below and relief was moulded to the effect of giving declaration, that judgment and decree of Trial Court could not be executed against express provisions of law i.e. S.124 of Khyber Pakhtunkhwa Local Government Ordinance, 2001 and S.40 of Khyber Pakhtunkhwa Local Government Act, 2013

Constitutional petition was allowed accordingly.

Claim of the petitioner-Housing Authority was that it was not bound to execute such decree as specific objection as to ownership of one of the private parties/seller of the property in dispute had been raised in its written statement

Validity

Regulator or an authority like the petitioner could not be mandatorily compelled to accept and implement the compromise entered between the private parties to which the regulator/authority or any other third party was not a signatory

Consent decree is a kind of agreement/contract between the two parties with a superadded command of the court, but it would not bind a third party, who was not a party to the suit or the compromise

When a compromise decree is being passed based on consent of the parties, while doing so, the court shall either dismiss the suit against the party, who was not a signatory to it; or in the alternative, the suit must remain alive and continue against the said defendants

Suit cannot be, in any circumstances, decreed against a defendant, who has not signed the compromise application nor has consented to it

If the defendant had stated something in its written statement which to the plaintiff appeared to be a concession, then the only recourse available was under O.XII, R. 6, C.P.C., by way of a decree on admission

In the present matter, this was not the case, thus, courts below, including the Executing Court, had failed to appreciate the law

Constitutional petition was allowed, in circumstance.

Appellant / defendant assailed consent decree on the plea that he had not given any authority to his counsel to give conceding statement to decree the suit on the basis of compromise

Plea raised by respondent / plaintiff was that no appeal could be filed against consent decree

Validity

Where there exists an order recording consent by parties, any party can challenge such order on the basis that no consent was given for purposes of passing of order on the basis of a compromise, which then led to issuance of a decree

Where such ground is raised, the appeal cannot be dismissed out of hand in terms of S. 96(3) of C.P.C.

Appeal filed by appellant / defendant was maintainable and it was for appellant / defendant to establish that the order recording consent was not sustainable as no consent had been given or no statement had been made before the Court

Clear authority vested in the counsel to affect a compromise, which compromise was affected by the counsel in the interest of appellant / defendant and accordingly order in question was passed recording such compromise

Appellant/ defendant failed to establish that the compromise was not duly authorized or that his counsel did not have authority to enter into a compromise

High Court declined to interfere in order recording such compromise, as the same suffered from no infirmity

Appeal was dismissed in circumstances.

Impugned order, judgment and decrees had been passed when the petitioner conceded the claim of the respondents; meaning thereby the same was a consent decree against which no appeal lies except certain exceptions which had not been agitated rather the petitioner contented before the appellate court that he was ready to transfer the same land in favour of the respondents while the whole corpus of land according to the gift mutation did not exist on the spot

Trial Court as well as appellate court had rightly adjudicated upon the matter in hand and had not committed any illegality or irregularity warranting interference by this court

Petition stood dismissed in limine.

Exceptions where consent decree is appealable listed.

Consent decree or order is nothing but a contract between the parties with command of the Court superadded to it.

Petitioner along with his brother and counsel was present before the appellate court when the parties settled to resolve the claim of dowry articles and dower on the basis of statement of maternal uncle of the petitioner on oath

Appellate court had passed the impugned order and decree on the basis of statement of petitioner's uncle

Status of impugned order and decree was that of consent decree, which was not appealable

No illegality as jurisdictional error was pointed out in the impugned order warranting interference by the High Court in exercise of extraordinary constitutional jurisdiction

Constitutional petition was dismissed.

Suit for specific performance of contract and permanent injunction having been filed, during pendency of said suit another suit on the same subject was filed

Compromise in the earlier suit was effected and resultantly compromise decree was passed in the same

Defendant in the subsequent suit filed application for rejection of plaint which was accepted by the Trial Court but Appellate Court remanded the matter for decision afresh after recording evidence of the parties

Validity

Held, sale deed with regard to suit property had been executed and registered in favour of defendant

Plaintiffs should have amended their plaint seeking cancellation of said registered sale deed but they had failed to do so

Plaintiffs had not filed application for consolidation of their suit with the earlier suit

Plaintiffs should have challenged the consent decree if same was collusive and illegal

Plaintiffs had not availed the said remedy and they allowed consent decree to attain finality

If consent decree in the earlier suit had been obtained through fraud and misrepresentation then plaintiffs should have filed an application under S.12(2) of C.P.C. but no such application had been moved on their behalf

Plaintiffs had failed to avail proper remedies available to them under the law, in circumstances-Registered sale deed with regard to suit property in favour of defendant and consent decree passed in the earlier suit were still in field and had attained finality

Relief of specific performance with regard to same suit property could not be granted in favour of plaintiffs, in circumstances

Plaintiffs were not parties in the suit in which consent decree had been passed but no second decree could be passed with regard to same subject matter without first setting aside the said consent decree

Plaintiffs could not claim at belated stage that said consent decree was not binding on them

Relief of specific performance being discretionary in nature could not be granted in favour of plaintiffs and they could claim damages in their suit but they did not choose to do so

Suit filed by the plaintiffs could not succeed in any manner and under any circumstances

Impugned judgment passed by the Appellate Court was set aside and order of Trial Court was restored

Plaintiffs would be at liberty to seek damages if so advised and permissible under the law

Revision was allowed, in circumstances.

Decree passed pursuant to a compromise under O.XXIII, R.3, C.P.C. is essentially a contract between the parties which is superadded with the command of the Court and therefore a compromise decree is subject to the incidents of a contract.

Jurisdiction could be determined on the basis of plaint of the original suit.

Mother would inherit the whole estate of deceased son according to Shia and Sunni laws of succession if he died issueless and father of deceased was also not alive

"X" was step brother of "Y" and he was not entitled to get any share in the estate of "Y"

Inheritance mutation in favour of mother of "Y" in the revenue record was rightly attested

Mother of "Y" became absolute owner of land in her possession after 15-03-1948

Consent decree passed in favour of step brother of "Y" had become in-executable under S. 2-A(b) of Punjab Muslim Personal Law (Shariat) Application Act, 1948

Step brother of "Y" was excluded from the arena and property in possession of mother of "Y" after 15-03-1948 which would go to her legal heirs

Consent decree was passed in the year 1946 before the promulgation of Punjab Muslim Personal Law (Shariat) Application Act, 1948 which was past and closed transaction

Daughter of mother of "Y" was entitled to the extent of property which was in the name of her mother at the time of her death

Suit filed by the daughter of mother of "Y" was decreed to the extent of such property whereas that of step brother was dismissed

Revision was disposed of accordingly.

What could be achieved directly was not to be allowed to be achieved indirectly by filing application under S. 12(2), C.P.C. against consent decree.

Plaintiff filed suit for specific performance claiming that defendant, through his general power of attorney, entered into agreement to sell with him, for sale of suit property

Plaintiff, under said agreement, had paid earnest money to defendant and remaining sale consideration was to be paid at time of execution and registration of sale deed in his favour

Defendant conceded said claim of plaintiff, and Trial Court decreed the suit as prayed for on basis of defendant's conceding statement

Judgment and decree of trial had attained finality as no appeal was filed against the same

Defendant challenged the judgment and decree under S. 12(2), C.P.C. on ground that plaintiff had deceived him by issuing cheques for payment of balance consideration which were dishonoured

FIR lodged on basis of said cheques were quashed and private complaint was also dismissed

Trial Court dismissed application under S. 12(2), C.P.C.

Contentions raised by defendant were that sale consideration had never been paid to him by plaintiff, and that the judgment and decree was procured by carrying out deception and perpetrating fraud upon him and the court

Plaintiff defended impugned judgment and decree pleading that defendant himself got recorded his conceding statement and had not complained of any pressure being exerted upon him for doing so, nor had defendant challenged authority of his general power of attorney for making sale agreement and that defendant could have instituted suit under O. XXXVII, C.P.C. for recovery of amount

Validity

Trial Court decreed the suit on basis of conceding statement of defendant

Plaintiff had neither made misrepresentation nor committed any fraud upon court to have the decree passed in his favour

Defendant could have filed suit for recovery against plaintiff, but he could not assail judgment and decree under S. 12(2), C.P.C.

Trial court could pass decree on admission made by defendant

Appeal under S. 96, C.P.C. did not lie against consent decree, and what could not be achieved directly was not to be allowed to be achieved indirectly

If defendant had not filed appeal against judgment and decree of trial court, he could not be allowed to challenge the vires of the same by indirect means through application under S. 12(2), C.P.C.

Application was misconceived and untenable, and the same was rightly dismissed by trial court

Revision petition was dismissed in circumstances.

Contention of defendant was that plaintiffs were to challenge the decree through an application under S. 12(2), C.P.C. rather to file a fresh suit-Validity-Plaintiffs challenged the consent decree and mutation sanctioned thereof on the basis of said decree on the grounds of being illegal, fictitious, based on fraud and inoperative on their rights

Plaintiffs had also challenged the validity of the judgment and decree on the other grounds apart from those mentioned in S.12(2), C.P.C.

Suit for setting aside the judgment and decree was competently filed and defendant had failed to prove the ownership in the land in dispute

Findings recorded by the courts below were based on cogent reasons

No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below

Appeal was dismissed in circumstances.

Compromise decree or order is a contract between parties to suit and its breach will give cause of action to them to approach the court to seek remedy

Where judgment is passed on basis of compromise, remedies available to aggrieved party is to file either review or fresh suit.

Consent decree was an agreement, like any other agreement and it was open to parties to enter into compromise with reference to their rights and obligations under a decree

Nothing existed in Civil Procedure Code, 1908, or Financial Institutions (Recovery of Finances) Ordinance, 2001, which could prevent parties to seek amendment of consent decree by circumventing mandatory provisions of Civil Procedure Code, 1908, and Financial Institutions (Recovery of Finances) Ordinance, 2001

Parties even with consent could not confer jurisdiction on court to amend decree in contravention of provisions of O. XX, R. 2, C.P.C. and S. 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001

Once the Court had passed decree, it became functus officio except for amendment of decree as provided under law

No new person could be impleaded even as a defendant in suit after passing of decree

High Court declined to interfere in consent decree passed by Banking Court

Application was dismissed in circumstances.

Consent decree was passed and plaintiff was directed to pay the remaining consideration amount within 15 days otherwise suit was ordered to have been dismissed

Decree-holder filed execution petition wherein objection application was moved that remaining consideration amount had not been paid

Contention of decree-holder was that remaining consideration amount had been paid outside the court

Objection petition was accepted concurrently

Validity

Remaining consideration amount had not been paid in the court which was allegedly paid to the judgment-debtor out of the court

Decree-holder had not fulfilled the requirement of O.XXI, R.2, C.P.C.

Where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a technicality

No illegality, irregularity or misreading and non-reading of evidence had been pointed out in the impugned orders

Revision was dismissed in circumstances.

Consent decree was an agreement, like any other agreement and it was open to parties to enter into compromise with reference to their rights and obligations under a decree

Nothing existed in Civil Procedure Code, 1908, or Financial Institutions (Recovery of Finances) Ordinance, 2001, which could prevent parties to seek amendment of consent decree by circumventing mandatory provisions of Civil Procedure Code, 1908, and Financial Institutions (Recovery of Finances) Ordinance, 2001

Parties even with consent could not confer jurisdiction on Court to amend decree in contravention of provisions of O. XX, R. 2, C.P.C. and S. 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001

Once the Court had passed decree, it became functus officio except for amendment of decree as provided under law

No new person could be impleaded even as a defendant in suit after passing of decree

High Court declined to interfere in consent decree passed by Banking Court

Application was dismissed in circumstances.

Petition under S.12(2), C.P.C. is maintainable against consent decree.

Plaintiff filed suit for specific performance of agreement to sell and the same was decreed on the basis of compromise between the parties

Housing Authority declined to transfer plot in favour of plaintiff on the ground that no title existed in the name of defendant which could be transferred

Single Judge of High Court declined to direct Housing Authority to transfer suit plot in favour of plaintiff

Validity

Decree passed on the basis of compromise by and between the parties was essentially a contract between parties which derived sanctity by court by superadding its seal to a contract

Such compromise even after it was superadded with seal of court had almost all the ingredients of a contract, therefore, it could be set aside on any of the ground on which a contract could be attacked such as fraud, mistake or misrepresentation

Only the parties who were signatory to the contract were bound by terms and conditions so recorded and agreed upon between them

Court could not while enforcing terms and conditions so agreed between parties to the contract notwithstanding that such contract was superadded with seal of court and turned in a consent decree would compel a third party to obey unless a fiduciary relationship between judgment debtor and such third party was established

Division Bench of High Court declined to interfere in order passed by Single Judge of High Court

High Court appeal was dismissed in circumstances.

Contention of decree holders was that objections to execution petition could not be considered unless judgment debtor had deposited the decretal amount or furnished security in lieu thereof

Validity

Validity of decree could only be challenged before the Executing Court if the same was void or had been passed by the court having no jurisdiction

Provisions of O.XXI, R.23-A, C.P.C. were mandatory and objections to the execution by a judgment debtor could not be considered unless judgment debtor had deposited the decretal amount or furnished security in lieu thereof

Executing Court could not go beyond the decree

Judgment debtor could not escape from his obligation under the decree

Requirement of notice and hearing were duly complied with at the time of trial

Executing Court could not be burdened with re-trial

Compromise decree was in fact a contract, breach of which might give rise to fresh cause of action to decree holder

Decree was neither void nor it had been passed by a Court having no jurisdiction

Objections to execution application taken by the judgment debtor were over-ruled, in circumstances.

Appellant had filed civil revision before the High Court during pendency of which both parties compromised and a consent decree was passed

Subsequent to the consent decree, respondent filed an application under S. 12(2), C.P.C., challenging the consent decree/compromise, whereafter High Court decided the civil revision on merits

Validity

Application of respondent under S.12(2), C.P.C. was not decided

Without the compromise judgment and decree being set aside under S. 12(2), C.P.C., no order could be passed on merits

Impugned judgment of High Court whereby it decided the civil revision on merits was set aside in circumstances and Supreme Court directed that application filed by respondent under S. 12(2), C.P.C., shall remain pending with the High Court and shall be decided at the earliest

Appeal was disposed of accordingly.