Consent Decree – Appeal not maintainable – Party to approach the court which had recorded compromise and passed decree and establish that there was no compromise. [CPC O. 23 R.3]

The Civil Misc. Appeal had been filed against the judgement and decree dated 05-11-2011, passed by the District Judge, Alwar whereby a consent decree u/s.13B of the Act of 2005 had been passed dissolving the marriage between the appellant–wife and the respondent-husband.

It was contended that the appellant is an absolutely illiterate lady and was married to the respondent on 31- 01-2009. It is submitted that the judgment and decree dated 05-11-2011 purportedly by consent for dissolution of marriage has been obtained fraudulently and the appellant at no point of time signed an application u/s. 13B of the Act of 2005, nor even entered the witness box before the District Judge, Alwar nor make any statement as attributed to her before the learned trial court. It is submitted that the judgment and decree for dissolution of marriage on 05-11-2011 is absolutely fraudulent and in fact an outcome of criminal enterprise.

The Court observed that section 96(3) CPC categorically states that no appeal shall lie from a decree passed by the court with the consent of the parties. There is thus a clear statutory prohibition against filing of an appeal against a consent decree. Thus, the court held that u/s. 96(3) CPC, an appeal against a consent decree is not maintainable.

The Hon’ble Supreme Court in the case of Pushpa Devi Bhagar (D) by LR vs. Rajinder Singh & Ors. [AIR 2006 SC 2628 (1)] had the occasion to deal with a situation where a consent decree was sought to be impugned in appeal.

The Hon’ble Court observed that the position that emerges from the amended provisions of Order 23, can be summed up thus :

(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.

(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1, Order 43.

iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.

(iv) A consent operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23.

Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made.