Krishna Kumar Ojha vs Jitendra Chaudhary
- Court
- Supreme Court
REPORTABLE
2026 INSC 662
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2026
(Arising out of SLP(C) Nos.13671 of 2025)
KRISHNA KUMAR OJHA &ORS. …APPELLANT(S)
Versus
JITENDRA CHAUDHARY & ORS. …RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
1. Leave Granted.
2. This appeal has been filed by the Appellants (the legal heirs of the original
plaintiffs and other co-sharers) who are aggrieved by the dismissal of civil
revision no.103 of 2024 by learned single judge of the High Court of Judicature
th
at Patna which was in turn directed against order dated 7 February 2024 passed
by Sub-Judge-01(East) Muzaffarpur in Miscellaneous Case No.07 of 2022,
nd
whereby petition for setting aside decree dated 22 February 1994 in Suit 128 of
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2026.07.01
15:10:14 IST
Reason:
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1 2
1989 , on the basis of a compromise entered by Sub-Judge-01, Muzaffarpur , was
allowed.
3. The plaintiff, Dinbandhu Ojha, filed a partition suit, including, against the
th
predecessors of the present respondent, seeking 1/4 share in the total property
of common ancestor by the name of Thakur Ojha. Chaturbhuj Chaudhary
(Defendant No. 5), the abovesaid predecessor of the respondents appeared
through counsel on summons in the suit. During the pendency thereof, a
compromise petition was filed by the plaintiffs and defendants ‘jointly’ which
nd
was accepted by Sub-Judge-01 Muzaffarpur vide order dated 22 February 1994.
th
Pursuant thereto, a final decree was prepared on 27 May 1997 in terms of the
above said compromise petition. All appeared fine for approximately a quarter of
a century thereafter, but it was not so. The defendant no.5 represented through
LRs - the respondents herein filed a Miscellaneous Case No.07 of 2022 before
th
the concerned Court on 7 April 2022, seeking setting aside of the aforesaid
compromise decree on the ground that the same had been obtained by fraud and
without the signatures of defendant no.5. The same was allowed by the Trial
Court, on 07.02.2024. Appeal thereagainst has been dismissed by the High Court.
Hence, the case is before us.
4. The short question which arises for consideration is whether the
nd
compromise as accepted by the Civil Court on 22 February 1994 was in
3
accordance with Order XXIII Rule 3 of Code of Civil Procedure, 1908 or not?
5. We are of the considered view that it was not. Our reasons for such a
conclusion shall be made clear in the following paragraphs.
1
Partition suit
2
Civil Court
3
CPC
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5.1 Order XXIII is titled ‘ Withdrawal and Adjustment of Suits ’ and
Rule 3 thereof provide for compromise of suit in the following terms:
“3. Compromise of suit.—Where it is proved to the satisfaction of the
Court that a suit has been adjusted wholly or in part by any lawful
agreement or compromise in writing and signed by the parties or
where the defendant satisfied the plaintiff in respect to the whole or
any part of the subject-matter of the suit, the Court shall order such
agreement, compromise or satisfaction to be recorded, 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 denied by the other
that an adjustment or satisfaction has been arrived at, the Court shall
decide the question; but not 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.
Explanation.— An agreement or compromise which is void or
voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be
deemed to be lawful within the meaning of this rule.
”
(emphasis supplied)
5.2. A perusal of various decisions of this Court reveals the following
aspects regarding compromise decree:
(a) Prior to the 1976 Amendment to the CPC, a
compromise could be either oral or written, and the Court
could decide the same on the basis of general evidence by the
4
parties, Gurpreet Singh v. Chatur Bhuj Goel
(b) After the amendment, it has been clarified that a
compromise must be in writing and must be signed by the
5
parties, Som Dev v. Rati Ram
(c) The objective of the amendment is to prevent false
and frivolous pleas of compromise having been entered into
between the parties; ( Gurpreet Singh supra )
(d) A compromise decree being signed by all parties is
a mandate of the law; ( Gurpreet Singh supra )
4
(1988) 1 SCC 270)
5
(2006) 10 SCC 788)
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(e) It has to be voluntarily accepted by parties and once
such acceptance is recorded by the Court, it acquires the
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sanctity of the judicial order, Banwari Lal v. Chando Devi
(f) A counsel/duly authorised representative/GPA
holders is permitted to sign a compromise decree on behalf
of those he represents, granted there is express
authorisation or exigency of circumstance ( Byram
7
Pestonji Gariwala v. Union Bank of India ; Pushpa Devi
8
Bhagat v. Rajinder Singh ,
(g) In accepting a compromise decree, while it is true
that the court merely put a seal of approval, but its role
cannot be reduced to being only a recorder. It has to apply
its judicial mind to the terms to ensure that they are lawful;
( Banwari Lal supra )
(h) A consent decree which is the conclusion of a
compromise, does not operate as a resjudicata for it does
not meet Section 11 (CPC) requirements; ( Baldevdas
9
Shivlal v. Filmistan Distributors (India) (P) Ltd . )
(i) The only remedy available against a compromise
decree is a recall application. A fresh suit or an appeal is
not maintainable against this kind of decree; ( Navratan
10
Lal Sharma v. Radha Mohan Sharma
5.3 The compromise that has been furnished to this Court by the
respondents along with the written submissions records that there is no
objection on behalf of defendant no.5 Chaturbhuj Chaudhary, and the said
6
(1993) 1 SCC 581)
7
(1992) 1 SCC 31
8
(2006) 5 SCC 566)
9
(1969) 2 SCC 201
10
2024 SCC OnLine SC 3720
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statement has come through his counsel Ram Krishna Mehta, whose
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vakalatnama is dated 27 August 1992. The question is whether Mr. Mehta
learned counsel had been permitted by his client to act in a way that sealed,
the fate regarding the entire property. In Byram Pestonji Gariwala supra ,
subsequently referred in M.P. Rajya Tilhan Utpadak Sahakari Sangh
11
Maryadit v. Modi Transport Service it has been categorically observed
that a counsel should not act on implied authority in the absence of exigent
circumstance.
5.4 Similar observations have been made in Himalayan Coop. Group
12
Housing Society v. Balwan Singh by a three judge Bench as under :
“31. Therefore, it is the solemn duty of an advocate not to transgress
the authority conferred on him by the client. It is always better to
seek appropriate instructions from the client or his authorised agent
before making any concession which may, directly or remotely,
affect the rightful legal right of the client. The advocate represents
the client before the court and conducts proceedings on behalf of the
client. He is the only link between the court and the client. Therefore
his responsibility is onerous. He is expected to follow the
instructions of his client rather than substitute his judgment.
32. Generally, admissions of fact made by a counsel are binding
upon their principals as long as they are unequivocal; where,
however, doubt exists as to a purported admission, the court should
be wary to accept such admissions until and unless the counsel or the
advocate is authorised by his principal to make such admissions.
Furthermore, a client is not bound by a statement or admission which
he or his lawyer was not authorised to make. A lawyer generally has
no implied or apparent authority to make an admission or statement
which would directly surrender or conclude the substantial legal
rights of the client unless such an admission or statement is clearly a
proper step in accomplishing the purpose for which the lawyer was
employed. We hasten to add neither the client nor the court is bound
by the lawyer's statements or admissions as to matters of law or legal
conclusions. Thus, according to generally accepted notions of
professional responsibility, lawyers should follow the client's
instructions rather than substitute their judgment for that of the
client. We may add that in some cases, lawyers can make decisions
without consulting the client. While in others, the decision is
reserved for the client. It is often said that the lawyer can make
11
(2022) 14 SCC 345
12
(2015) 7 SCC 373
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decisions as to tactics without consulting the client, while the client
has a right to make decisions that can affect his rights.”
(emphasis supplied)
5.5 Recently, the decision authored by J.B. Pardiwala J ., in Prasanta
Kumar Sahoo v. Charulata Sahoo, noted that almost sixty years ago the
Madras High Court had observed that express authorisation is the norm and
has to be followed:
“105. Almost six decades back, the Madras High Court speaking
through Ramaswami, J. (as his Lordship then was)
in Govindammal v. Marimuthu
Maistry [ Govindammal v. Marimuthu Maistry , 1957 SCC OnLine
Mad 47 : AIR 1959 Mad 7] had sounded the note of caution
observing as under : (SCC OnLine Mad para 5)
“ 5 . … The decisions appear to be fairly clear that even
in cases where there is no express authorisation to enter
into a compromise, under the inherent authority
impliedly given to the Vakil he has power to enter into
the compromise on behalf of his client. But in the present
state of the clientele world and the position in which the
Bar now finds itself and in the face of divided judicial
authority and absence of statutory backing prudence
dictates that unless express power is given in the
vakalatnama itself to enter into compromise, in
accordance with the general practice obtaining a special
vakalatnama should be filed or the specific consent of
the party to enter into the compromise should be
obtained. If an endorsement is made on the plaint, etc. it
would be better to get the signature or the thumb
impression of the party affixed thereto, making it evident
that the party is aware of what is being done by the Vakil
on his or her behalf.”
5.6 In the present case, there is no express authorisation by defendant no.5
allowing Mr. Mehta to sign the compromise on his behalf, nor is there anything
on record to demonstrate the exigent circumstances which prompted the
counsel to act without seeking a clear approval from defendant no.5. In
absence of the aforesaid, the ‘ voluntary ’ aspect mandated by Order XXIII Rule
3 of the Code of Civil Procedure, 1908, which is essential for a compromise
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decree cannot be established on the record. As such, the requirements of Rule
3 have not been complied with. The
resulting compromise is contrary to law.
6. On the aspect of delay, prima facie the gap between 1994 and 2022 is
egregiously large and it requires to be examined in detail. To that end, we must
consider the application filed under Section 151 CPC and the reasoning on this
aspect given both by the Civil Court and also the High Court.
6.1 The paragraph in the application is reproduced as under:
“ 10. That after inspection of record following facts were revealed
to the applicants first of all
…
(v) That the plaintiff has not sought for any relief against Chaturbhuj
Chaudhary with respect to R.S. Khata- 77 and 78.
(vi) That Chaturbhuj Chaudhary was made formal party (defendant)
vide para 7 of the plaint.
(vii) That a fraudulent compromise petition with respect to R.S.
Khata- 77 and 78 was filed on 18-02-1994 but not signed by
Chaturbhuj Chaudhary.
(viii) That a power and written statement without supported with an
affidavit and statement etc. alleged to be signed by Chaturbhuj
Chaudhary was filed on 27-08-1992 by the lawyer Shri Ram Kishor
Mahto.
(ix) That one lawyer namely Ramkishor Mahto allegedly wrote
no objection on behalf of defendant no.-5 on compromise petition.
(x) That the compromise petition was accepted by the Learned
Court on 22-02-1994 without calling for the case as well as parties
including defendant no.-5. The compromise petition does not bear
the signature of Chaturbhuj Chaudhary.
(xi) That the above said compromise decree dated 22-02-1994 is
fraudulent and illegal one.
…
11. That it is submitted that no notice of Partition Suit- 128/1989
was ever served to the father of the applicants.
12. That Chaturbhuj Chaudhary never engaged any lawyer much
less namely Ramkishor Mahto to do Pairvee of Partition Suit-
128/1989.
13. That the signature appearing on written statement dated 27-
08-1992 as well as Wakalatnama dated 27-08-1992 are not of
Chaturbhuj Chaudhary rather it is fake one got created by plaintiff
and other defendants of Partition Suit-128/1989 in collusion with
each other.
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…
16. That Chaturbhuj Chaudharv never said any where that R.S.
Khata-77 and 78 have been wrongly recorded in his name.
17. That since Chaturbhuj Chaudhary was not acquainted with
Partition Suit – 128/1989 then question of taking part in Partition
Suit-128/1989 by any mode does not and cannot arise by him.
…
28. That cause of action arose to the Applicants on 03-04-2022 when
the members of opposite parties came to the spot and asked the
applicants to vacate the lands of R.S. Khata-77 and 78 on the basis
of fraudulent Compromise Decree on 04-04-2022 when the
applicants filed “Inspection Petition” on 06-04-2022 when record of
Partition Suit-128/1989 was available to the applicants for inspection
then the applicants finally came to know about the fraudulent
Compromise Decree got passed by Learned Sub Judge First,
Muzaffarpur .”
6.2 The plaintiff took objection to the aforesaid pleadings and instead
averred as follows:
12. That from the said G.T. it would clear that Chatarbhuj Ojha
“
was the own Mama of opp. Party no. 1 (Krishna Kumar Ojha),
maternal uncle of Opp. Party no.1 and Nana (grand father) of other
opp. Parties. It is necessary to mention here that Chatarbhuj Ojha has
much affection with his two sisters namely- Ramjhari Devi and
Asarfi Kuer, so he mostly lived in her sister’s house situated in
village Khabara, P.S. -Sadar, District- Muzaffarpur and look after the
cultivation work of his sisters and also helped his Bhagina (Nati)
grandson and in the cultivation work. It is necessary to mention here
that Thakur Ojha died in the 1956, so the ancestral Revisional Survey
Khatian has been prepared in the guidance of Chatarbhuj Chaudhary
who is the own mama of opp. Party no.1 and own (nana) grand father
of the opp. Parties.
13. That while living with her sister’s house chaterbhuj Ojha has
got recorded some ancestral land of these opp. Parties in his name
under Khata No. 77and 78. It is a settled principle of law that
Revisional Survey Entry does not creates title as discussed in A.I.R.
1972 Patna page 27 (FB). It is necessary to mention here that inspite
of wrong survey entry the disputed land bearing Khata no. 77 and 78
has been coming in possession of these opp. Parties.
14. That when these opp. Party no.1 and other opp. Party have
raised their objection before his mama about the wrong survey entry
with respect to the land of Khata no. 77 and 78 then Chatarbhuj
Chaudhary executed a registered Ladavi on 14.12.88 in favour of
Daya Sindhu Ojha, Din Bandhu Ojha, Sri Krishna Kumar Ojha sons
of Thakur Ojha, Smt. Raj Kumari Devi wife of Ramchandra Ojha
with with respect to the land of Khata No. 77 and 78 to the
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knowledge of applicant and the sold land has been mentioned in Sch.
B and C of P.S. No. 128/89.
…
16. That Chatarbhuj Chaudhary had filed his written statement
on 27.8.92 where Chatarbhuj Ojha admitted that the lands of Khata
no. 77 and 78 belonged to the family of these opp. Parties and it is
the ancestral lands of these opp. Parties.
17. That thereafter Chaterbhuj Chaudhary had also joined in the
compromise petition and duly signed on the compromise petition. It
is necessary to mention here that since filing of the partition suit no.
128 of 1989 till final Decree, Chatarbhuj Ojha had pay a big role for
passing of the final Decree because Chaterbhuj Chaudhary was
acquainted with the court’s work.
…
34. That the contents of para no. 10 (vii) and vii of the injunction
petition are wrong and incorrect. It is wrong to say that a fraudulent
compromise petition with respect to P.S. Khata no. 77 and 78 was
filed on 18.02.1994 but not signed. Fact is that Chatarbhuj
Chaudhary in his written statement as well as in compromise of P.S.
No. 128/89 after going through the contents has signed his signature
in the written statement as well as in the compromise petition.
35. That the contents of para no. 10(ix) of the injunction petition
are wrong and incorrect. It is wrong to say that one lawyer namely
Ram Kishore Mahto allegedly wrote no objection on behalf of the
defendant need on compromise petition. Fact is that Ram Kishore
Mahto the lawyer of Chatarbhuj Chaudhary after instruction from
his client has dully signed objection in the compromise petition. ”
6.3 The Sub-Judge-01(East) Muzaffarpur in Miscellaneous case no.07
of 2022 rejected the ground of limitation observing that the case of the
applicant is that he came to know of the allegedly fraudulent compromise
decree, just shortly before filing the said application. Whether or not this
was the case, is a matter of evidence to be decided at trial. Further, it was
observed that the law of limitation applies against act of parties and not
action of the Court. It was also observed that assuming truth to the matter
of knowledge being subsequent, the power under Section 151CPC can be
exercised by the Court for the ends of justice especially where fraud is
alleged to have been perpetuated and the same cannot be defeated due to
irregularity in procedure.
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6.4 The aspect of delay was not gone into by the High Court and instead
the order overall was affirmed as there was no illegality or jurisdictional
error therein.
6.5 In our view, if the delay had been the ground to dismiss the
miscellaneous case, the effect would be to perpetuate something which is
not in accordance with law. The same cannot be permitted. The law of
limitation, while undoubtedly an important facet of the legal system,
cannot be used as a means to defeat substantive rights. In this case,
although the compromise was not signed by him, defendant no.5’s rights
in the property which is not miniscule were directly affected by the
compromise.
6.6 There is another aspect that requires to be noted. All of the essential
facts which form the basis of the compromise are itself contested. One
party says that they are not family members while the other, in the
objection via family chart demonstrates them to be relatives; One submits
that the defendant no.5 had been made party only because his name had
been inadvertently recorded in the survey register, while the other says
that they have full right over the property and no part of the disputed
property had been given up by them; there is also a statement regarding
the complete lack of authorisation any which way, to the counsel for
defendant no.5; the appellants submit that they/their father (defendant
no.5) were not aware of the suit proceedings whereas the other party
submits that defendant no.5 knew about all of the going-ons that led to the
compromise decree. It was nearly 22 years after defendant no.5 died,
which was in itself eight years after the decree of 1994, that the
respondents sought to dispossess the appellants thereby setting into
motion the present proceedings. Clearly, the most basic facts are disputed.
This, along with the fact that the compromise decree is not in accordance
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with law gives us enough reason to agree with the reasoning of the Court
below. It is for the aforenoted reasons that the delay of 25 years has to be
given a go-by in the facts of this case. It is not in all cases that such large
delay can be set aside. Whether or not a particular case warrants taking
such a view is to be determined after a detailed examination of the record
in each case.
6.7 The compromise decree has been correctly set aside. In fact, we are
of the view that the issues of the partition suit require to be adjudicated in
a full trial. While we acknowledge the difficulty that may arise in 1989
suit being taken to trial 37 years later, but it is not possible to decide the
rights of the parties without the due process of collection and weighing of
evidence, whatever may be available.
7. In view of the aforenoted, appeal is dismissed. No costs.
…………………………………………..…J.
(SANJAY KAROL)
………………………………………..…….J.
(NONGMEIKAPAM KOTISWAR SINGH)
New Delhi;
July 1, 2026
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