MOU GHOSH vs M/S JAISWAL BROTHERS REPD BY KUNDAN JAISWAL AND ORS

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Appellate Side

Present:
The Hon’ble Justice Ajay Kumar Gupta


C.O. No. 1225 of 2025
Mou Ghosh
VS


M/s. Jaiswal Brothers & Ors.

For the Petitioner : Mr. Dyutiman Banerjee, Adv.
Mr. Debjit Dutta, Adv.

For the Opposite Party No. 3 : Mr. Manabendra Saha Roy, Adv.
Mr. Sounak Bhattacharjee, Adv.
Mr. Milan Kanti Mandal, Adv.
Mr. Anirban Saha Roy, Adv.

Heard on : 24.08.2026
Delivered on : 01.09.2026
Uploaded on : 01.09.2026
Ajay Kumar Gupta, J.:
1. By filing this application under Article 227 of the Constitution of
India, the petitioner/plaintiff challenges the order No. 11 dated
03.04.2025 passed by the Learned Chief Judge, City Civil Court
at Calcutta in Title Suit No. 2398 of 2022 (Mou Ghosh Vs. M/s.
Jaiswal Brothers & Ors.).

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2. By the said order impugned, the learned Chief Judge directed
immediate restoration of possession of Smt. Jayanti Ghosh and
her family members in the suit property situated on the third
floor of premises No. B/19K/H/37, Goa Bagan Street, Kolkata –
700 006 with the help of Local Police Station being the Burtolla
Police Station by breaking open the padlock, if any, within 24
hours from the time of receiving the order as the learned Judge
noticed that the decree holder/petitioner committed fraud upon
the Court apparent from the record on the basis of which the
compromise decree was granted by the Learned Judge, Bench –
II, City Civil Court, Calcutta without disposing of the application
filed under Order 23 Rule 3A read with Section 151 of the Code
of Civil Procedure.

3. The petitioner had filed a suit for a decree of declaration and
injunction before the Learned Chief Judge, City Civil Court at
Calcutta. It was subsequently transferred to the learned Judge,
Bench-II, City Civil Court, Calcutta, being Title Suit No. 2398 of
2022, against M/s. Jaiswal Brothers, a partnership firm, inter
alia, for the following reliefs:-
a) Decree for declaration that the plaintiff is entitled to get the
scheduled flat as Owner/Lessee of the said flat; Alternatively,
a decree for declaration that the plaintiff is entitled to get back

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the entire Rs. 16,00,000/- along with interest from the
Defendants; Three persons, namely Kundan Jaiswal, Chandan
Jaiswal and Jayanti Ghosh were arrayed as the
representatives of the said defendants’ partnership firm.

4. In the said suit, on March 21, 2023, an application under Order
XXIII Rule 3 read with Section 151 of the Code of Civil Procedure
had been filed based on which the suit was decreed on
compromise on April 3, 2023 after examination of witnesses.
5. Thereafter, execution was initiated, and in execution of the said
compromise decree, the plaintiff took possession of the suit flat
on March 19, 2025 with the help of police.
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6. Suddenly, on 27 March, 2025, one of the representatives of the
said defendant firm, Smt. Jayanti Ghosh had filed an application
before the learned Chief Judge, City Civil Court at Calcutta
captioned as “Complete travesty of justice” praying that leave be
granted to file appropriate application for setting aside the
compromise decree, which had been obtained by the plaintiff by
playing fraud upon the Court and the petitioner.
7. The learned Chief Judge, by the order dated March 27, 2025 had
called for the records of the said Title Suit No. 2398 of 2022 from
the learned Judge, Bench II.

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rd
8. On 3 April, 2025, Smt. Jayanti Ghosh moved an application
before the learned Chief Judge, City Civil Court at Calcutta, inter
alia , praying to set aside the said compromise decree and restore
her possession in respect of the said suit flat. The learned Chief
Judge, by the Order No.11 dated April 3, 2025, inter alia , had
passed the following directions seemingly on the said application
captioned as “Complete Travesty of Justice” and fixed May 16,
2025 for hearing of the said application under XXIII Rule 3A of
the Code:
“Having noticed the fraud committed upon the Court apparent
from the record on the basis of which the compromise decree
was granted by the ld. Judge, Bench-II, City Civil Court,
Calcutta, this Court directs immediate restoration of possession
of Smt. Jayanti Ghosh and her family members in the suit
property situate on the third floor of premises no.
B/19K/H/37, Goa Bagan Street, Kolkata700006 with the help
of local Police Station being the Burtolla Police Station by
breaking open the padlock, if any, within 24 hours from the
time of receiving of this Order.
The matter shall be listed for hearing of the application
under order 23 Rule 3A read with Section 151 of the Code of
Civil Procedure on 16.05.2025”

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9. The said order is under challenge in the instant application
under Article 227 of the Constitution of India.
10. The revisional application was initially moved before the then
Co-ordinate Bench of this Court. In course of hearing, learned
advocate for the petitioner questioned under which provision of
law, the learned Chief Judge had called for the records of a suit
that has already been disposed of, especially when the decree
passed in the suit, has been executed to the full satisfaction of
the Executing Court.
11. It was further submitted that the plaintiff has been dispossessed
from the suit flat with the help of police, although no
opportunity was given to the petitioner to contest or controvert
the contention of Smt. Jayanti Ghosh. It was further submitted
that in the order impugned, the allegations recorded against
several lawyers are completely unwarranted.

12. Learned senior Counsel, Mr. Basu appearing on behalf of Smt.
Jayanti Ghosh, the opposite party no.3 herein, had submitted
that the compromise decree is the product of fraud, as would be
evident on the face of it, since his client, even though a party in
the said suit, was not made a party to the application under
Order XXIII Rule 3 of the Code of Civil Procedure, despite the
compromise decree obtained thereof.

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13. Upon thorough hearing of the parties and considering the
serious nature of the allegation of fraud, the then Co-ordinate
Bench of this Court called for the record to see the whole events.
14. After receiving the case record and scrutinising the same, it has
emerged that the application captioned as “Complete travesty of
justice” was filed only to seek leave to file an appropriate
application for setting aside the said compromise decree. The
learned Chief Judge, by the order impugned, directed restoration
of the possession of the suit flat in favour of Smt. Jayanti Ghosh
and fixed a date for hearing her application for setting aside the
said compromise decree.
15. Upon further perusal of the record, it was noted that admittedly,
the suit in whose record, the learned Chief Judge has taken the
applications has already been disposed of by another court;
therefore, there is no scope for the learned Chief Judge to
exercise her power under Section 10 of the City Civil Court Act,
1953 to call for the records of the said suit. It was also not clear
as to how the learned Chief Judge had directed restoration of
possession of the suit flat when the application of Smt. Jayanti
Ghosh for such relief is still pending.
16. Be that as it may, the then Co-ordinate Bench directed the
learned Registrar (Judicial Service) to call for an explanation

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from the learned Chief Judge, City Civil Court, Calcutta
justifying the steps taken in the matter by the said learned
Judge and to place the same before the Court on the next date of
hearing and ultimately, all further proceedings before the
learned Chief Judge, City Civil Court, Calcutta, in respect of the
application filed by Smt. Jayanti Ghosh under Order XXIII Rule
3A of the Code stayed until further order(s).
17. Subsequently, vide order dated 28.04.2025, the then Co-
ordinate Bench of this Court accepted the explanation offered by
the learned Chief Judge. The learned Court further held that the
issue now left for consideration is whether the possession of the
petitioner over the suit property can be restored as she was
dispossessed from it in execution of the order impugned. The Co-
ordinate Bench further directed the parties, in the meantime, to
maintain status quo in respect of the nature, character and
possession of the suit flat until further order(s).
18. After demit from the office of the then Co-ordinate Bench, this
matter has been assigned before this Court for its disposal.
19. Learned counsel for the petitioner strenuously submitted that
the then Co-ordinate Bench of this Court was fully satisfied that
the dispossession from the suit property was prima facie wholly
illegal without disposing of the application filed by the opposite

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party no.3 under Order 23 Rule 3A, claiming that the decree
obtained by the petitioner was based on fraud committed upon
the court. Accordingly, an explanation was sought for from the
Learned Chief Judge, City Civil Court. In turn, the then Chief
Judge, City Civil Court submitted her explanation and the same
was accepted by the then Co-ordinate Bench. It is, therefore,
submitted that the order impugned should be set aside and
further the physical peaceful possession of the suit property be
restored to the petitioner as peaceful possession in execution
proceeding of the compromise decree was delivered in favour of
the petitioner on 19.03.2025 with police help.
20. It was further submitted that the question of practising fraud
either upon the Trial Court or the opposite party no.3 does not
arise. The application under Order XXIII Rule 3 was filed by the
parties, and the Trial Court accepted it after being satisfied. The
allegation of the opposite party no.3 is out and out false and
frivolous. The same ought to be dismissed by the Trial Court
upon hearing the parties. The subject application is still
pending.
21. Per contra, the learned counsel representing the opposite party
no. 3, admitted that the possession was delivered to the
Opposite party upon direction by the then Chief Judge, although

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the application under Order 23 Rule 3A read with section 151 of
the Code of Civil Procedure praying for setting aside of the said
compromise decree was kept pending for final disposal.
22. It was further submitted that a direction is required to be passed
directing the concerned court to dispose of the application as
expeditiously as possible without disturbing the peaceful
possession of the opposite party No. 3 until disposal of the
application under consideration. The revisional application
should be disposed of directing both parties to maintain status
quo in respect of the nature, character and possession of the
suit flat until disposal of the application filed by the Opposite
Party No. 3, since the Co-ordinate Bench also directed a similar
order of status quo long back on 13.06.2025. Ever since, it has
continued, and the Opposite Party No. 3 has been in possession
of the suit flat.

23. Heard the learned counsels for the respective parties at length.
24. Considering the whole issue involved in the present revisional
application and upon careful perusal of the material on record,
this court is of the similar view that the impugned order, dated
03.04.2025 passed by the then Chief Judge, City Civil Court,
Calcutta, was ex-facie illegal as it was passed without allowing
the parties an opportunity of hearing and even without disposal

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of the application under Order 23 Rule 3A of the Code of Civil
Procedure filed by the Opposite party no.3.
25. Now, the question that remains is whether possession of the suit
property should be with the opposite party no. 3 or be restored
in favour of the decree holder/petitioner? It is well settled law
that a compromise decree cannot be challenged unless it was
obtained by practising fraud upon the court or the parties. It can
only be challenged on the ground that the underlying settlement
agreement or compromise was not lawful, such as being vitiated
by fraud, undue influence, coercion, misrepresentation, or
mistake.
26. Upon meticulous perusal of the joint compromise petition, filed
by the parties before the Trial Court, it is prima facie revealed
that only the plaintiff and Defendant no.2, Chandan Jaiswal,
signed the joint compromise petition without obtaining
authorisation from the defendant no.1, Kundan Jaiswal and
Defendant no.3/opposite party no.3, Smt. Jayanti Ghose herein.
While obtaining the decree on the basis of a joint compromise
petition, consent and signatures of all plaintiffs and defendants
are essential; otherwise, the same is not acceptable in law. A
decree passed without proper consent or signatures of the
parties themselves or their duly authorised representatives, who

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hold express authority. The Hon’ble Supreme Court in the
landmark decision in the case of S.P. Chengalvaraya Naidu v.
1
Jagannath clearly held that one who comes to court must
come with clean hands and a decree secured via deception is
void and non-est.
27. It is an undisputed fact that the possession of the suit property
was delivered to the decree holder/petitioner with police help on
19.03.2025, after institution of execution case being Misc Case
3988 of 2023. However, subsequently, it was restored to one of
the defendants, namely, Smt. Jayanti Ghosh, the opposite party
no.3 herein, pursuant to order no.11 dated 03.04.2025 passed
by the Learned Chief Judge, City Civil Court at Calcutta in Title
Suit No. 2398 of 2022 (Mou Ghosh Vs. M/s. Jaiswal Brothers &
Ors.). The issue raised by the Opposite Party No. 3 is that the
compromise decree was obtained on the ground of fraudulent
practice upon the court, and the petition was pending before the
Chief Judge, City Civil Court at Calcutta. The same is pending
consideration. Therefore, this court is of the view that it would
not be appropriate to enter into the merits of the case at this
stage.

1
(1994) 1 SCC 1

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28. Admittedly, the compromise decree was passed by the learned
Judge, Bench II, Calcutta. Therefore, the application filed under
Order 23 Rule 3A of the CPC ought to be heard by the same
court, which accepted the compromise agreement/joint petition
and converted it into a decree. It has the jurisdiction to
entertain, hear and decide a recall or challenge application
under the provisions of Order 23 Rule 3A of the CPC. At the cost
of repetition, this court is of the same view as the then Co-
ordinate Bench observed that admittedly, the suit in whose
record the learned Chief Judge has taken the applications, has
already been disposed of by another court; therefore, there is no
scope for the learned Chief Judge to exercise her power under
Section 10 of the City Civil Court Act, 1953. Therefore, the
application pending before the Chief Judge, City Civil Court at
Calcutta is required to be transmitted to the original court,
where final compromise decree was allowed.
29. The order No. 11 dated 03.04.2025 passed by the Learned Chief
Judge, City Civil Court at Calcutta in Title Suit No. 2398 of 2022
(Mou Ghosh Vs. M/s. Jaiswal Brothers & Ors.) is hereby set
aside. However, considering the overall facts involved in the
present case, this court is of the opinion that the possession of
the suit property mentioned in the schedule of the plaint. i.e.

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rd
ALL THAT a flat on the 3 floor measuring about 450 sqft at
premises No. B/19K/H/37, Goabagan Street, Kolkata-700006
shall remain with the opposite party no.3 till disposal of the
application filed under order 23 Rule 3A of the Code of Civil
Procedure and parties shall maintain status quo in respect of
the nature, character and possession of the suit flat since the
said status quo order granted and is maintaining by the opposite
party no.3 on and from 28.04.20025. The Chief Judge, City Civil
Court at Calcutta is directed to transmit the Trial Court Records
to the learned Judge, Bench – II, City Civil Court at Calcutta
immediately. In turn, the learned Judge, Bench – II is directed to
expedite the matter and finally dispose of the applications as
expeditiously as possible without granting unnecessary
adjournment to the parties. It is relevant to clarify that the Trial
Court shall decide the application independently and in
accordance with law without being influenced by any of the
observation, whatsoever made by this court hereinabove.
30. Consequently, C.O. No. 1225 of 2025 stands allowed partly
without order as to costs. Connected applications, if any, are
also, thus, disposed of.

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31. Let a copy of this judgment be forwarded to the Learned Chief
Judge, City Civil Court at Calcutta for information and taking
necessary steps.
32. All parties shall act on the basis of a server copy of this
judgment duly downloaded from the official website of this court.
33. Urgent photostat certified copy of this judgment, if applied for, is
to be given as expeditiously to the parties on compliance of all
legal formalities.


(Ajay Kumar Gupta, J.)

(P.A.)