Holding

A compromise decree entered without the consent or notice of an heir who holds a vested right under the original decree is not binding on that heir, and any application to set it aside must be filed within the statutory limitation period, which in this case had lapsed.

Summary

The appellant, Sneh Gupta, an heir of Munni Devi, challenged a compromise decree that had been entered into by the original plaintiff Veena Nirwani and certain defendants during the pendency of two suits concerning land mutation and alleged fraud. The compromise resulted in the withdrawal of both suits, but Gupta and other heirs were not parties to, nor were they given notice of, the settlement. The Supreme Court examined whether Order XXI Rule 1 of the CPC permits withdrawal of a suit on the basis of a compromise without notice to interested parties, and whether Order XXI Rule 3 binds non‑parties to such a compromise. It also considered the applicability of the Limitation Act, 1963 (Article 123) for setting aside a void or voidable compromise decree and the scope of the High Court’s supervisory jurisdiction under Article 227 of the Constitution. The Court held that a compromise decree cannot affect the vested rights of an heir who was not a party, and any application to set it aside must be filed within the statutory limitation period, which had expired. Consequently, the High Court’s order setting aside the compromise decree was upheld. The appeal was dismissed.

Issues considered

The applicability of Order XXI Rule 1 of the CPC to the withdrawal of a suit based on a compromise without notice to all interested parties.
Whether Order XXI Rule 3 makes a compromise decree binding on parties who were not parties to the compromise.
Whether the limitation period under Article 123 of the Limitation Act, 1963, bars the appellant’s application to set aside the compromise decree.
The extent of the High Court’s supervisory jurisdiction under Article 227 of the Constitution in interfering with the compromise decree.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rule 1, s. Order XXI Rule 3
Constitution of Indias. Article 227
Hindu Succession Act, 1956
Limitation Act, 1963s. Article 123, s. Section 3
Registration Act

Subjects

compromise decreewithdrawal of suitOrder XXI Rule 1Order XXI Rule 3limitation periodArticle 227vested rightsheirland mutationcivil procedureset aside decree

Judgment

[2009] 2 S. C.R. 553

SNEH GUPTA A
~ ;, V.
DEVI SARUP & ORS.
Civil Appeal No.1085 of 2009
FEBRUARY 17, 2009
B
( S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ )
Code of Civil Procedure, 1908:
'W

..j Or. 23, rr. 1 and 3 - Suit for declaration and possession
decreed - Withdrawal of suit in terms of compromise in c
appeal - HELD: If suit is to be disposed of in terms of
compromise, Or. 23, r. 1 may not have any application - If an
·~
heir has derived title to the property, he cannot be deprived
thereof by reason of an agreement between plaintiff and
contesting defendants.
D
.
/
Compromise in appeal - Hearing of appeal preponed
'(
for the purpose - HELD: Notice should have been given to all
parties - Practice and Procedure.
Constitution of India, 1950:
E
Article 227 - Supervisory jurisdiction of High Court -
HELD: Is limited so as not to enter into disputed question of
;.. fact.
Limitation Act, 1963 :
"' F
s.3 - Schedule - Article 123 - Period of /imitation for
setting aside compromise decree - HELD: A compromise
decree is as good as contested decree attracting provisions
of the Act- In absence of application for condonation of delay,
•, court has no jurisdiction in terms of s. 3 to entertain application G
for setting aside the decree.
', ..... ,. One 'BM' was the owner of the suit properties. He
had a daughter name~y 'MD'. One of the heir of 'MD' namely

553 H
(

•
~

554 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 'VN' filed two suits: Suit No 185of1989 was filed against
transferees of 'RS' who was the third cousin of 'BM' stating
that mutation was got sanctioned in 1954 by playing fraud
and on misrepresentation that 'BM' was not alive nor did
he had any heirs. In suit No. 303 of 1992 it was alleged
B that 'RS' failed to carry out the intentions of the testator,
and the terms of the trust were violated. Suit No. 185/1989
was decreed. During the pendency of appeals, the pla,intiff
and respondents no. 1 to 3 and 'RS' entered into a
compromise and the suit was withdrawn. Suit No. 303/
C 1989 was also withdrawn in terms of the compromise.
However, the application of the appellant, another heir of
'MD', who was not a party to the suit, questioning the .
compromise on the ground that its notice was neither 111111

given to her nor to other heirs of MD, was allowed by the
0
appellate court; but the said order was set aside by the
High Court.
In the instant appeal it was contended for the
appellant that the trial court having held that not only the
plaintiff but the other heirs of 'MD' were also entitled to
-
E· recovery of possession of the suit properties, the
purported compromise entered into between the plaintiff
and contesting defendants must be held to be illegal and
without jurisdiction.
Dismissing the appeal, the Court
F
HELD: 1.1 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
G dismissed on the basis of a compromise, order XXlll Rule
1 of the Code of Civil Procedure, 1908 may not have "any
application. Even in such a case, a permission to withdraw
the suit could have been given onty with notice to the
respondents who had become entitled to some interest
H in the property by reason of a judgment and decree
SNEH GUPTA V DEVI SARUP & ORS. 555'

passed in the suit. The Court for the purpose of allowing A
withdrawal of a suit after passing the decree, viz., at the
appellate stage, is required to consider this aspect of the
matter. 'VN', although was a plaintiff, did not claim any
exclusive title in herself, but claimed title to the property
as one of the daughters of 'MD'. Interest of the appellant 8
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. [para 19] [569-E, F, G, H; 570-A, 8]
1.2 The claim put forth by 'RS' on the basis of an oral C
'hiba' purported to have been made by 'BM' 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 'BM' was seriously ill and had been residing
- at some other place. The trial Judge also arrived at a 0
finding that before the Revenue authorities, a
misrepresentation had been made stating that 'BM' was
issueless. The appellant is one of the heirs and legal
representatives of 'BM' being a daughter of 'MD'. She,
therefore, indisputably was entitled to a share in the E
property of 'MD' as one of her legal heirs. The appellant

- having got a decree in her favour, 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. [para 20-21] [570-C, D, E, F, G, H]
F
1.3 Order XXlll, Rule 3 of the Code of Civil Procedure,
1908 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 G
disposed of. [para 22] [571-A, B]
Batdevdas Shiv/al and Another v. Filmistan Distributors
(India) P Ltd. and Others (1969) 2 SCC 201; Parayya
Al/ayya Hittalamani v. Sri Parayya Gurulingayya Poojari H
556 SUPREME COURT REPORTS [2009] 2 S.C.R.

~ ,,.
A and Ors. JT 2007 (12) SC 352; Gurpreet Singh v. Chatur
Bhuj Goel (1988) 1 SCC 270; Dwarka Prasad Agarwal
(0) By LRS. and Another v. B.D. Agarwal and Others
(2003) 6 SCC 230; K. Venkatachala Bhat and Another v.
Krishna Nayak (d) by LRs. and Others (2005) 4 SCC
B 117; R. Rathinavel Chettiar and Another v. V Sivaraman
and Others (1999) 4 SCC 89 - referred to.
1.7 Title to a property must be determined in terms of ""
the statutory provision. If by reason of the provisions of
the Hindu Success.ion Act, .1956 the appellant herein had
c 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. [para 27] [573-D, E]
R. Ramamurthy Ayer v. Raja V Rajeswara Rao (1972) ....
D 2 SCC 721; R. Rathinavel Chettiar v. V Sivaraman (1999) ).

4 SCC 89; 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 - referred to.
Amteshwar Anand v. Virender Mohan Singh and Others
E (2006) 1 sec 148 - distinguished.
2.1 If the hearing of a case is preponed, it should be ....
done with notice to all the parties. It is not the case of
...
respondent no. 1 that notice had been given to all the
·F parties or otherwise also they were aware thereof.
Indisputably, the date fixed in the matter was July, 1998.
The compromise petition, however, was filed on
25.04.1998. For the purpose, the date was preponed.
Indisputably, the appellant was not informed thereabout.
She was not given any notice of preponement of the date.
G
The,question as to whether the appellant knew thereabout lo
~·

or not is essentially a question of fact. [para 38 and 31]
[578-8, C; 575-G, H; 576-A, B]
Kashmir Singh v. Union of India & Ors. (2008) 7 SCC
H ,259 - held inapplicable.
SNEH GUPTA V. DEVI SARUP & ORS. 557

~ )- Jai Narain Parasrampuria v. Pushpa Devi Saraf (2006) A
7 SCC 756; T VR. Subbu Chetty's Family Charities v.
Raghava Mudaliar AIR 1961 SC 797 - distinguished.
'
M. Meenakshi v. Metadin Agarwal (2006) 7 SCC 4 70
and Sultan Sadik v. Sanjay Raj Subba (2004) 2 SCC
377; Rajasthan State Road Transport Corporation and 8
others v. ZakirHussaif'! (2005) 7 SCC 447; State of Punjab
f and Others v. Gurdev Singh (1991) 4 SCC 1; and A.R.
... Antulay v. R. S. Na yak & Anr.(1988) 2 SCC 602 - referred
to.
c
2.2 The High Court, however, 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 Courtithat the findings arrived at by the Additional
D

District Judge were perverse and/ or in arriving at the said
findings, the Additional District Judge failed and/ or
neglected to take into consideration the relevant factors
or based its decision on irrelevant factors not germane E
thereto or there existed an error apparent on the face of
record. [para 33] [ 576-E, F, G]
-,/
Yeshwant Sakhalkar and Another v. Hirabat Kamat
Mhamai and Another (2004) 6 SCC 71 - referred to. F
3.1 The compromise decree even if void was required
to be set aside. 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. [para 48] (587-0, E] G

State of Rajasthan v. D.R. Laxmi (1996) 4 SCC 445; and
· Sultan Sadik v. Sanjay Raj Subba (2004) 2 SCC 377 - referred
to.
3.2 Article 123 of the Schedule to Limitation Act is in H
558 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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 the instant case, summons were served
upon the appellant; she appeared in the appeal, and knew
8 about the proceedings. Therefore, the first part of Article
123 shall apply. Indisputably, the case was fixed in July
1998, but the application
r~ -
was filed on 28.2.2002, i.e., after
... '
a gap of four years. There is no reason as to why the
factum of passing of the decree could not have been
C known in July 1998 or soon thereafter. [para 44-45] [582-
B, C, D, E, F]
Mohd. Noorul Hoda v. Bibi Raifunnisa & Ors. (1996) 7
\·-
SCC 767; Nahar Enterprises v. Hyderabad Allwyn Ltd. & Anr
(2007) 9 SCC 466; Manick Chandra Nandy v. Debdas Nandy
& Ors. (1986) 1 SCC 512; and Panna/al v. Murari/al (1967) 2
D SCR 757 - referred to.
3.3 Even otherwise, no error has beec committed by
the High Court in arriving at the finding that the appellant
had knowledge of the compromise decree much earlier.
She did not file any application for condonation of delay.
E She filed two more applications for recall of the order dated
6.11.2004 in other connected appeals. Those applications
were filed after expiry of the period of limitation and none
of them were accompanied with any application for
condonation of delay. In the absence of any application
F for condonation of delay, the Court had no jurisdiction in
terms of s.3 of the Limitation Act, 1963 to entertain the
application for setting aside the decree. [para 49] [588-G,
H; 589-A, BJ
Oipak Chandra Ruhidas v. Chandan Kumar Sarkar
G (2003) 7 SCC 66; and Sayeda Akhtar v. Abdul Ahad (2003)
(7) sec 52 - referred to.
Case Law Reference
(1969) 2 sec 20 referred to para 23
12007 (12) SC 352 referred to para 23
H
SNEH GUPTA V. DEVI $ARl)P & OR$. 559

~
,. (1988) 1 sec 210 referred to para 24 A

(2003) 6 sec 230 referred to para 24
(2005) 4 sec 111 referred to para '2
(1999) 4 sec 89 referred to para 24
B
(1972) 2 sec 121 referred to para 28
(1964) 2 SCR 538 referred to para 29
.;
(1967) 3 SCR 886 referred to par~ 29

(2006) 1 sec 148 distinguished para 30 c
(2004) a sec 11 referred to para 33
2008) 1 sec 2ss held inapplicable para 39

-+
(2ooa) 1 sec 756 distinguished para 40 p
.;
AIR 1961 SC 797 distinguished para 40
(2oos) 7 sec 470 referred to para 42
(2004) 2 sec 371 referred to para 42
(2005) 7 sec 447 ref~rred to para 43 E
(1991) 4 sec 1 reterr~q to parn 4a
...
y
(1996) 1 sec 767 r~ferred tg p~r~ 45

(2001) e sec 466 referred to· para 47 F
(1986) 1 SCC612 referred to para 47
(1967) 2 SCR 767 referred to para 47
(1 esa) 2 sec so2 rnferreg to para 48
G
r
~
(1996) 4 sec 445 n~ferrec:J to p~ra 4Q

"' (2004) 2 sec 377 ref@rreq tQ paFa 48
(2003) 7 sec ee referred tQ p~ra 4~

(2003) (7) sec a2 ref~rr~d to Para 49
560 SUPREME COURT REPORTS [2009) 2 S.C.R.

A CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1085 ~ ,.
Qf 2009
f.rom th@ final Judgement and Order dated 26.05.2005 of
the HiQh Court of Judicature at Allahabad in Civil Misc. Writ
Petitil;ln No. 1920 of 1999.
I?
S.P, Singh, Raje~h Kumar, Neeraj Shekhar, Mohan
Pandey, Satish PC\ndey and Chitralekha Sen, with him for the
App~!lent.

C. ~Jl. Singh, Vibhakar Mishra, K.K. Pandey, Pankaj Sharma
anq A~hi~th Kum9r, with him for the Respondents.
Th@ Judgem~nt of the Court was delivered by
S~ij, SINHA, J.

O 1, L,.e~we {aranted.
2. lnterpre,tation of Order XXI II Rule 1 of the Code of Civil
Progedure it> involved in this appeal. It arises out of a judgment
and order d~ted. 13.l!UWOS passed by a learned Single Judge
E gf the High Court of Punjab and Haryana setting aside an order
dated 2~.9.2006 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
§Qm§ Qf th@ p~rtie§ h~reto were declared illegal as also null
F and vgig.
3, ln~isputably, two gyit§ were filed being Suit No.185 of
1989 arid Suit No.30~ of 1992 on 20. 11.1989 and 21.3.1992
before th§ Additional Civil J1Jd9a, Jagadhari, Haryana and
S~nior b>ivision ~§ncti aind b@fern the Clvll Judge, Jagadhari,
§ Hery~n~, r~&p@ctiv@ly,

In th@ s~ig §uits, inter ali1:1, the question as regards an order
of mutation carri~d gut in th@ R~venue record$ pursuant to or in
furtheranc~ of a transfer made by one Rc;ighuvir Singh in favour
H of his wife and son stated to be under an oral gift deed
SN!;H ~UPTA V OEVI ~AR.WP & ORS. 561
(S.S. SINHA J.,J
representing himi@lf a§ th§ sw(;'3eS?Pr of Sh~numal was in A
questiori. W@ would refer to the respective claims made in the
said suit$ a little l~ter. We m~y. however, at this sta~e, notice
the genealogical tree which is as under;
[ Bany Mal B

r ._;.,._ ...
r
Munni-
~-·"'-~

..

Devi
W/q O.P. Gypta
I c
r -. I I I I I
. - ~ ~

Veen a Ct-rnnder Sneh Lata Pawan K.K. Vi nod
Nlrwanl Nirwimi @6n12h Gupta Gupta Gupta
~lJpt~
..... ···---· . . .. - .. .... -·
"
D
-~
~-

Rfl9htlir §ingh '
QQui?in gt
a~ny M~I
O<eshe D@vi-wite.) E
. -- . , . - ,..

.. --- ··-
I
--··-- '"w.--·~·
-
I ...
Devi Sorup l<Yl$1JITI Lc~t~
(Maya Devi..., Wife) F
" -· --·· - -- -· - . ., ~-

4. Roghbir ~inQh ii:; §~jg tP Pe. th@ third c91:1sin of Bany Mal.
Banum~I itl s~id to have exe.@ut~g ~ Wi!! in f~woyr of Munni Devi
on or about 14. 11, 1937, He i§ a~f:Jifl §eig tg hav@ @~~gut~g Will e §
In favour af Ro9hbir Sins.h on §f ~l:)gyt ~1-~, 1~4~. A~9grdin~ to
the .plalntiff, Raghl:>ir ~in~h h~g ~gqyir~~ lif~ interest in. the
purp9rting ea.id Will without having any right to alienate, ~ra11~fer,
mortgage or creating any charge on the properties situated in
various villages, namely, Rapri, Radur, Ghesfur etc.
H
562 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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.303of1992 was for a declaration that Raghubir Singh
was only having a life interest in the suit property and having not
13 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:
C "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 Cl!t that time. Thus, said mutation was sanctioned
by producing a fictitious person, in place of Banu
P ·Mal;

ii) that mutation was neither verified nor initialed with
di\lte by filed Kanungo, as required under para 7.4(ii)
of the P'unjab Land Records Manual;
E (iii) that another mutation No.1423 pertaining to the
partition of joint holdings, was sanctioned on
~a.2.1 ~54, l;;>µt then~ is no mention in the disputed
mutation No.1427, entered on 26.2.1954 and
§anctigned on 2.3.1964, therein. Thus, disputed
F rnµtation Wi$ kept aecret flnd later on got sanctioned,
in collusion with revenue officers. The disputed
rnutation was sanctioned without any request of Ba nu
Mal;
(iv) that mutation No.1422 and 1423, dated 28.2.1954
G §hgw that the o.onsolidation work in village Rapri
starte~ on 2!:UL 1952 and completed on 28.2.1954
~ut di~put~ct mµtaticm was entered prior to completion
Qf consolidation work and without any approval or
~~n9tiqn of the c;;onsolidation Officer, as required to
H pe rn!:lqe un9er th@ Consolidation of Holdings of
SNEH GUPTA V. DEVI SARUP & ORS. 563
[S.S. SINHA J.]

Punjab Act, 1948. Had it been in the knowledge of A
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 8
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
R~ghubir Singh, who got the disputed mutation forged C
and fabricated. The disputed mutation does 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
0
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
rev.enue officer, at the time of sanction of that
mutation." E

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 F
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 G
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).
H
564 SlJPR~ME COURr REPORTS [2009] 2 S.C.R.

A Title suit No.185 was decreed by a judgment and decree
di:lted 30.10.199S passed by the Additional Civil Judge, Senior
Division Jag~dhati, Haryana; holding :
ilAs a result of my findings and observations on above
issues and more particularly, on Issue No.1, 2 and 9, the
B 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
c 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 ~nd 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
D 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
E 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.
F 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.
G 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.
H
SNEH GUPTA V. DEVI SARUP & ORS. 565
[S.B. SINHA J.]

~
10. It is not in dispute that during the pendency of the said A1-,
" 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 B
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.'~
11. The learned Additional District Jagadhari in whose c
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.
D
,;_ 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 Veen a Nirwani-plaintiff with Raghbir Singh and others in Suit E
No.303 of 1992, the terms whereof read as under :
.... "1 . That the suit of the plaintiff is to be decreed as prayed
-,I for in the plaint except the land measuring 42 Kanals
3 marlas i.e. 113rd share of the land measuring 126 F
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 G
,., Nos.2 to 6 at the spot and now the plaintiff a·nd
j.
defendants Nos.2 to 6 are in actual and physical
possession being its owners and defendant No.1 or
his successors or LRs will have no right, title or
interest of any kind in the land in suit. H
566 SUPREME COURI REPORfS [2009] 2 S.C.R. l,

A 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
8
owner$ 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
I
portion of these properties are under the tenancy of lo
,.._
different persons and now the plaintiff and defendants
c Nos.2 and 6 will have a right to recover the rent of
ll
these properties and deal with the properties in the i
manner they like i.e. they have each and every right
to eject the tenant and get possession of the same

-
I

D
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
~
E 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." I
)( ~
12. The said compromise petition was also accepted. It is t
F stated that pursuant to or in furtherance thereof, Raghbir Singh
delivered possession of 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 decre.ed in part.
G 13. Appellant filed an application before the Court of
Additional District Ju.dge, 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
H done without her knowledge and consent and despite the fact
t
r-
SNEH GUPTA V. DEVI SARUP & ORS. 567
[S.B. SINHA J.]

~-
that she had got vested rights therein in terms of the judgment A
" 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 B
in Suit No.185 of 1989. The learned Additional District Judge
by an order dated 29.9.2005 accepted the said contentions of
.I
the appellant and set aside the compromise decree dated
• 25.4.1998 opining that the same was illegal, null and void.
c
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. D
~ 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 E
behalf of the appellant, would submit that the learned Additional
Civil Judge, Senior Division, Jagadhari, having opined in its
judgment and decre.e 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 F
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 G
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:
H
568 SUPREME COURT REPORTS --- [2009) 2 S.C.R.

A 1) In terms of Order XX.Ill Rule 1 of the Code of Civil
Procedure, it is the privilege of the plaintiff alone to
withdraw the suit at any stage of the proceedings
and the appellant being only one of the defendants
did not have any locus standi to object thereto.
B 2) Both the compromise petitions filed in Suit No.185
of 1989 and Suit No.303of1992 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
c 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
•
'
t

D from challenging the validity or otherwise of the
compromise petition filed in Suit No.185 of 1989. y

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
E 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.
F 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 XXlll and Rule 3 of
the Code read as under :
"1. Withdrawal of suit or abandonment of part of
G 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
H
SNEH GUPTA V. DEVI SARUP & ORS. 569
[S.S. SINHA J.]

. ·~
XXXll extend, neither the suit nor any part of the claim A
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 B
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, c
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 D
.... 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. E
Explanation.-An agreement or compromise which is void
or voidable under the Indian Contract Act, 1872 (9of1872),
shall not be deemed to be lawful within the meaning of this
)I
rule."
F
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,
G
...
. _.
in our opinion, order XXlll 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
H
r

570 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
B 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
•
c an oral 'hiba' purported fo 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 s~ch transaction had taken »
place as Banu Mal was seriously ill and had bee,,n residing at ·•

&ome other place. The learned Trial Judge also arrhled at a
D finding that before the Revenue Authorities, a misrepresentation
had been made stating that. Banu Mal was issueless. y
..
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.
E She, therefore, indisputably was entitled to a share in the
property of Munni Devi as one of her legal heirs. Even if Order
XXlll, 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
F 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
G share in the suit property.
.....,,.,
Having got a decree in her favour, she was entitled to -4

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.
H
SNEH GUPTA V. DEVI SARUP & ORS. 571
[S.B. SINHA J.]

22. Order XXlll, Rule 3 of the Code of Civil Procedure A
• ;.. provides that a compromise decree is not binding on such
defendants who a(e-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. B
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 c
between the parties with the seal of the court supetadded to if
{See Baldevdas Shivlal and Another v. Filmistan Distributors
(India) P. Ltd. and Others [(1969) 2 SCC 201], ParavvaAflavva
Hittalamani v. Sri Paravva Gurulingayya Poojari and Ors. [JT
2007 (12) SC 352]}. D
--.i
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 XXlll, Rule 3 of the code of Civil
Procedure would not be applicable.
E
{See Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC
270]}

){
In Dwarka Prasad Agarwal (Dl By LRS. and Another v.
B.D. Agarwal and Others [(2003) 6 SCC 230], this Court held:
~ F
"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 G
- ~
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 H
572 SUPREME COURT REPORTS [2009] 2 S.C.R.

A be an order of the High Court, required to be implemented -4 ..
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
B 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 ...
c
{See also K. Venkatachala Bhat and Another v. Krishna
Nayak (d) f>y 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 :
D
"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 ~uit so as to destroy that decree. The
rights which have come to be vested in the parties to the
E 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 )I

High Court in which a contrary view has been expressed
F 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
G requirements laid down in Order XXlll, Rule 3 of the Code of
Civil Procedure is imperative in character. A compromise or
satisfaction must satisfy the conditions of a lawful agreement.
-4 - ~

26. Causes of action of both the suits furthermore were
different. The subject matter of the suit was also different
H although may be overlapping to some extent. If the compromise
SNEH GUPTA V. DEVI SARUP & ORS. 573
[S.B. SINHA J.]

It'
,.. entered into by and between the parties to Suit No. 303of1999 A
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 Singh, subject to the conditions in the B
Will, his title must be held to have been accepted. Bhnau Mal,
therefore, could dispose of his property in accordance with law.
. j
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 c
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 appellanfherein had derived title to
the property along with her brothers and sisters, she cannot be D
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. E
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 F
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 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
G
• ~
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 H
574 SUPREME COURT REPORTS [2009] 2 S.C.R.

A to discontinue the action if the plaintiff is- not wholly dominus ~ 'i'
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
B 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 gettin-g the same done tq~offer to sell the same to 4

such
,,
shareholder at the valyation
...._. - --
so made. This advantage,
c 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
D of the plaintiff in accordance with the provisions of Section
3(1) it would only enable the plain~iff 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
E under Section 2 instead of pa_rtitioning it. Apart from these
considerations it would also enable the plaintiff in a partition
suit to withdraw that suit and defeatthe defendant's claim
which, according to Crump J., cannot be don_e even in a
suit where the provisions ofthe Partition Act have not ,.
F bee0; invoked."
Yet again in R.Hathinavel 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
G /
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 tci 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
H
SNEH GUPTA V. DEVI SARUP & ORS. 575
[S.B. SINHA J.]

., ~ shown that the withdrawal would not affect or prejudice 'A
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 8
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. DY"ivedi that parties had entered c
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
come in conflict with the terms and conditions of the other. When D
· 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. E
Amteshwar Anand v. Virender Mohan Singh and Others
((2006) 1 sec 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 F
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-a-vis the appellant and the
other defendants and/or as to whether the litigation was being G
~ 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 H
576 SUPREME COURT REPORTS [2009] 2 S.C.R.

A purpose, the date was preponed. Indisputably, the appellant was ~ 1'
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
fact to which we would advert to a little later. It is, however, difficult
B 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 1
the materials brought on record by the parties arrived at a finding l
of fact that the settlement was not a comprehensive one. He,
c 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
D 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 moreoverwas exercising its jurisdiction
E 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 fol)nd by the High Court that the findings "'
F arrived at by the learned Additional District Judge were perverse
and/ or in arriving the said findings, the learned Additional District
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
G 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]}.

H It is on the aforementioned backdrop, we may consider
SNEH GUPTA V. DEVI SARUP & ORS. 577
[S.B. SINHA J.]
.... ~' the legal effect of non-signing of the compromise petition by the A
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
B
petitions do not refer to each other. Assuming that the parties
knew thereabout, it is beyond anybody's comprehension as to
t 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.
c
35. Appeals arising out of Suit No. 185 of 1989 and Suit
No. 303 of 1999 were pending before differert courts and in
that view of the matter it is 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. D
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. E

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 l;:iwyer of the appellant had no independent F
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 G
·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.
H
578 SUPREME COURT REPORTS [2009] 2 S.C.R.

A We would, however, deal with the question of her acquiring ,, ...
knowledge thereof at appropriate stage.
38. Whether the preponement of._!he 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
B Court is concernedjnasmuch 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
1
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 •
c 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
D 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:
E
"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 the State of Himachal Pradesh. In absence
F
of any law having been enacted to the contrary, the
functions under the 1966 Act must be performed by sorne
authority. The Central Government with the consent of the
State of Haryana has merely nominated the State of Punjab
tg do so. By reason thereof, it has not delegated any power.
G Sub-section (1) of Section 72 of the 1966 Act envisages
a direction upon the Central Government. Such a direction ~ •
has b~en 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
H power. It would, therefore, not be a case where the
SNEH GUPTA V. DEVI SARUP & ORS. 579
[S.B. SINHA J.]

.... t functions of the State Government must be held to be A
confined to its territorial jurisdiction."
The principle enunCiated therein is unexceptional but the
same has n·o application in the factual matrix obtaining in this
case.
B
40. The submission of Mr. Dwivedi that by reason of conduct
of the appellant, they would be deemed to have ratified the
I'
~
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 c.ourt had no jurisdiction to accept the c
compromise in defiance of the mandatory provisions contained
in Order XXlll 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
D
of a decree. Reliance has been 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 incorpt>ration has accepted the
contract and communicated such acceptance to the other E
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 F
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
..., k
Act, 1877 and Section 19 of the 1963 Act is not of much
G
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
H
580 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
B 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 com-munication thereof to
the other party thereto."

C 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
D 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 :

E "Description of suit Period of Time from which
limitation period begins to run
123. To set aside a decree Thirty days. The date of the decree
passed ex pa rte or to orwherethe
re-hear an appeal summons or notice
F decreed or heard was not duly served,
exparte. when the applicant
Explanation. - For had knowledge of
the purpose of this the decree."
article, substituted
G service under rule 20
of Order V of the code
of Civil Procedure,
1908 (5of1908) shall
not be deemed to be
H due service.
SNEH GUPTA V. DEVI SARUP & ORS. 581
[S.B. SINHA J.]

~. t 42. There cannot be any doubt that even if an order is A
void or voidable, the same must be set aside, as has been held
by this Court in M. Meenakshi 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 8
appeal.

•"
In Rajasthan State Road Transgort Corgoration 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 c
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:
D
'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 H by E
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 F
ex debito justitiae. See Rubinstein's Jurisdiction and
Illegality."'
The limitation, however, in a case of this nature would not

-
begin to run from the date of knowledge.
G
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
H
582 SUPREME COURT REPORTS [2009) 2 S.C.R.

A 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."
B 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
C 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
D preponement of the date.
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
E 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. [(1 ~96) 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
F 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 I

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. \
G 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 preponi[lg the appeal fixed in July 1998 her
H counsel Shri Lalit Gupta could have come to know in July
SNEH GUPTA V. DEVI SARUP & ORS. 583
[S.B. SINHA J.]

• 1998 itself which was the original date fixed in this appeal A
' 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 not
deriving the knowledge of order dated 25.4. ~98 in July B
1998 when the file was originally fixed and wheTl he was
supposed to appear in the Appellate Court: He has also
not given the' reasons why he did not inform his party after
·. i coming to know in July 1998 that the said appeal was
preponed to 25.4.1998 and was decided as c
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 :
D
"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 ... "
E
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 ,) F
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. G
Summons were s~r\ted on the appellant on 14-10'-1988,
but according to him a copy of the plaint was not anne;:wd
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 H
584 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
B 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
b~en passed. An application for setting aside the said ex { .'
c 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)
D (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.
E
xxx xxx xxx
12. The t~ird 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
F 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
Order 9 Rule 6(1)(c) had not been complied with. In that
view; the second part of Article 123, in terms whereof an
G . applicant would be deemed to have knowledge of passing
·of the said ex pa rte 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
H
SNEH GUPTA V. DEVI SARUP & ORS. 585
[S.B. SINHA J.]

+ the summons. Summons was served after the date fixed in the A
'
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 B
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
,I.
was laid down in the following terms : c
"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
D
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."
However, in the facts of that case, it was found that E
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 F
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 G
defendant produces some evidence to show that the
it'
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." H
586 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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:
B "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 ...
c brought to the notice of this Court, precluded the 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.
D 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
E 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 v
.. F 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
G
in the negative. No prejudice need be proved for enforcing
.,
the fundamental rights. Violation of a fundamental right -1.
itself renders the impugned action void. So also the
violation of the principles of riatural justice renders the act
a nullity. Four valuable rights_, it appears to us, of the
H
SNEH GUPTA V. DEVI SARUP & ORS. 587
[S.S. SINHA J.]
...._ t
appellant have been taken away by the impugned A
directions:
'(t) The right to be tried by a Special Judge in accordance
with the procedure established by law and enacted
by Parliament.
B
(ii) The right of revision to the High Court under Section
9 of the Criminal Law Amendment Act.
t (iii) The right of first appeal to the High Court under the
same section.
c
(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 D
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 E
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 vi res the power, becomes F
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
G
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 net result is that extraordinary jurisdiction of
H
588 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
B 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
c 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
D
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.
E 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 :
F "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."
G
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
H condonation of delay. She filed two more applications for recall
SNEH GUPTA V. DEVI SARUP & ORS. 589
[S.B. SINHA J.]
• t
of the order dated 6.11.2004 in other enacted appeals. Those A
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 B
entertain the application for setting aside the decree. [See Dioak
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, C
however, be no order as to costs.

R.P. Appeal dismissed.