1 2025:CGHC:14786 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 469 of 2024 1 - Shiv Kumar S/o Late Sheshnarayan Vaishnav, Aged About 68 Years R/o Village Birhanpur Khurd, Tehsil Gandai, District- Khairagarh- Chhuikhadan- Gandai (C.G.) 2 - Krishna Kumar S/o Late Sheshnarayan Vaishnav, Aged About 68 Years R/o Village Birhanpur Khurd, Tehsil Gandai, District- Khairagarh- Chhuikhadan- Gandai (C.G.) 3 - Ganesh Kumar S/o Late Sheshnarayan Vaishnav, Aged About 68 Years R/o Village Birhanpur Khurd, Tehsil Gandai, District- Khairagarh- Chhuikhadan- Gandai (C.G.) ... Petitioners Versus 1 - Mahesh Kumar S/o Late Sheshnarayanj Vaishnav, Aged About 55 Years R/o Village Birhanpur Khurd, Tehsil Gandai, District- Khairagarh- Chhuikhadan- Gandai (C.G.) 2 - Rishi Kumar S/o Late Sheshnarayan Vaishnav, Aged About 72 Years R/o Ward No. 07 Devki Nagar Gandai, Tehsil Gandai, District- Khairagarh-Chhuikhadan- Gandai (C.G.) 3 - Smt. Chanda Devi, D/o Late Sheshnarayan Vaishnav, Aged About 74 Years R/o Village And Post Tipani, P.S. Khamhariya, Tehsil Saja, District Bemetara (C.G.) 4 - Smt. Bimla Devi D/o Late Sheshnarayan Vaishnav, And W/o Shriram Gagurai Vaishnav, Aged About 70 Years R/o 194 A Sector Indrapuri, B.H.E.L. Bhopal, (M.P.) 5 - Smt. Sushila Devi D/o Late Sheshnarayan Vaishnav, And W/o Laxmisharan Vaishnav, Aged About 65 Years R/o Rewadih Ward Nagar Nigam Rajnandgaon, District Rajnandgaon (C.G.) SMT NIRMALA RAO -2- 6 - State Of Chhattisgarh Through Collector, Rajnandgaon, District Rajnandgaon (C.G.) ---- Respondents ------------------------------------------------------------------------------------------------- For Petitioners : Shri Priyank Rathi, Advocate. For Respondent No.1 : Ms. Naushina Afrin Ali, Advocate alongwith Shri Topilal Bareth, Advocate. For Respondent No.6 : Shri Lav Sharma, P.L. ------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 27.03.2025 1. Heard on admission. 2. The petitioners have challenged the order passed by the learned Civil Judge, Class-II, Chhuikhadan, District Rajnandgaon in MJC No. 1 of 2023 dated 3.2.2024 whereby an application moved by the petitioners under Section 151 of CPC has been rejected. 3. The facts of the present case are that the plaintiffs/petitioners filed a civil suit for partition and declaration seeking declaration that the will deed executed by the mother of the parties in favour of defendant No.1/Mahesh Kumar is null and void. The suit property is described in Schedules A, B and C. Initially, the suit property was recorded in the name of late Shri Sheshnarayan. After his death, his wife Smt. Dharam Kunwar Bai was looking after the property until her death on 23.12.2020. On 12.6.2014, late Smt. Dharam Kunwar Bai executed a will deed in favour of defendant 3 No.1 – Mahesh Kumar. According to the plaintiffs, the will is forged, as no such will deed was executed by her in favour of defendant No.1. During the pendency of the suit, the parties decided to enter into a compromise under Order 23 Rule 3 of CPC, and an application was filed on 12.7.2022. The said application was withdrawn by the parties, and a similar application was moved on 16.2.2023. The application was accompanied by affidavits of the parties. Learned trial Court recorded statements of both parties, and a compromise decree was drawn on 17.2.2023, in terms of the application for compromise under Order 23 Rule 3 of CPC. The petitioners/plaintiffs moved an application under Section 151 of CPC, inter-alia, on the ground that the properties mentioned in clauses (छ) and (ज) could not be divided evenly between the plaintiffs and defendants due to a typographical mistake. The said application has been rejected by the learned Court below vide order dated 3.2.2024. 4. Learned counsel for the petitioners would submit that the application moved under Order 23 Rule 3 of CPC dated 16.2.2023 would make it clear that in all clauses except (छ) and (ज), the description of property and division between the parties were expressly mentioned, however, in clauses (छ) and (ज), the property could not be divided between the petitioners and respondents. He would contend that therefore, an application was -4- moved to rectify this mistake, which was rejected by the learned trial Court. In support of his submissions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Compack Enterprises India Private Limited vs. Beant Singh, (2021) 3 SCC 702. 5. On the other hand, learned counsel for respondent No.1 would oppose the submissions made by counsel for the petitioners. She would submit that the property mentioned in clause (छ) is already recorded in the name of plaintiff No.1 and defendant No.1 by virtue of the will deed, therefore, there was no need to divide it amongst the other members of the family. She would further submit that the statements of the parties were recorded before the Court below and no objection was raised, and after considering the application moved under Order 23 Rule 3 of CPC and the statements of the parties, the learned trial Court passed the compromise decree on 17.2.2023. She would also submit that there was no typographical mistake, the terms and conditions of the application moved under Order 23 Rule 3 of CPC were recorded intentionally, and parties were aware of these facts. She placed reliance on the judgment of the Hon’ble Supreme Court rendered in the matter of Ajanta LLP vs. Casio Keisanki Kabushiki Kaisha D/B/A Casio Computer Company Limited and Another, (2022) 5 SCC 449. 5 6. I have heard learned counsel for the parties and perused the documents present on the record. 7. In the matter of Beant Singh (supra), the Hon’ble Supreme Court held that consent decrees are intended to create estoppel by judgment against the parties, thereby putting an end to further litigation between the parties. It was also held that a consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. The relevant paras 19 & 20 are as under:- “19. Before adverting to the specific contentions raised by the learned senior counsel for the Petitioner, it may be useful to briefly summarise the law governing consent decrees that shall inform our conclusions on the present matter. It is wellsettled that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties. Resultantly, this Court has held that it would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree, unless it is done with the revised consent of all the parties thereto. (Gupta Steel Industries v. Jolly Steel Industries Pvt. Ltd. & anr., (1996) 11 SCC 678; Suvaran Rajaram Bandekar & ors. v. Narayan R. Bandekar & ors., (1996) 10 SCC 255). 20. However, this formulation is far from absolute and does not apply as a blanket rule in all cases. This Court, in Byram Pestonji Gariwala v. Union Bank of India & ors., (1992) 1 SCC 31, has held that a consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. Further, this Court in the exercise of its inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise.” -6- 8. In the matter of Ajanta LLP (supra), it was held that the compromise decree is passed after recording the consent of the parties, and any deviation from the terms and conditions of such a decree would result in estoppel against the parties if any of them deviates from the terms and conditions of the decree. The relevant paras 20, 21, 22 & 24 are reproduced herein below:- “20. Resolving a dispute pertaining to a compromise P a g e 21 | 25 arrived at between the parties, this Court in Shankar Sitaram Sontakke & Anr., AIR 1954 SC 352 held as under: “7. If the compromise was arrived at after due consideration by the parties and was not vitiated by fraud, misrepresentation, mistake or misunderstanding committed by the High Court – the finding which was not interfered with by the High Court – it follows that the matter which once concluded between the parties who were dealing with each other at arm’s length cannot now be reopened.” 21. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn- out fight. A compromise decree creates an estoppel by judgment. It is relevant to note that in Byram Peston Gariwala, (1992) 1SCC 31, this Court held that the Appellant- therein did not raise any doubt as to the validity or genuineness of the compromise nor a case was made out by him to show that the decree was vitiated by fraud or misrepresentation. While stating so, this Court dismissed the Appeal. 22. A consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. The Court in exercise of its inherent power may rectify the consent decree to ensure that it is free from clerical or arithmetical errors so as to bring it in conformity with the terms of the compromise. Undoubtedly, the Court can entertain an application under Section 151 of the CPC for alterations/ modification of the consent decree if the 7 same is vitiated by fraud, misrepresentation, or misunderstanding. 24. The High Court applied its mind and passed a decree in terms of the settlement agreement dated 16.05.2019. Though, the High Court dismissed the Application by refusing to entertain the Application on the ground that it was filed under Section 152 of the CPC, we have considered the submissions of the parties to examine whether the Appellant has made out a case for modification of the decree by treating the Application as one under the proviso to Order 23 Rule 3 read with Section 151 of the CPC. There is no allegation either of fraud or misrepresentation on the part of the Respondent. We are unable to agree with the Appellant that there was a mistake committed while entering into a settlement agreement due to misunderstanding. Correspondence between the advocates for the parties who are experts in law would show that there is no ambiguity or lack of clarity giving rise to any misunderstanding. Even assuming there is a mistake, a consent decree cannot be modified/ altered unless the mistake is a patent or obvious mistake. Or else, there is a danger of every consent decree being sought to be altered on the ground of mistake/ misunderstanding by a party to the consent decree.” 9. On a perusal of the application moved under Order 23 Rule 3 of CPC dated 16.2.2023 and the statements of parties recorded before the learned Court below, it is apparent that there was no fraud, misrepresentation, or mistake on the part of plaintiff No.1 or defendant No. 1. The application was signed by both parties and it was supported with affidavits. The statements were recorded and no objection was raised by any of the members before the learned Court below. -8- 10. It appears that the property (छ) was recorded in the name of plaintiff No.1 and defendant No.1 by virtue of the will deed; therefore, it was not divided between the other members of the family. The petitioners/plaintiffs moved an application under Section 151 of CPC for correction of the decree, but the same was not permissible, and it was not a result of fraud. 11. Taking into consideration the law laid down by the Hon’ble Supreme Court, I do not find any good ground to interfere with the order passed by the learned trial Court. Consequently, this petition fails and is hereby dismissed. No cost(s). 12. The interim order granted earlier is hereby vacated. Sd/- (Rakesh Mohan Pandey) Judge Nimmi