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CODE OF CIVIL PROCEDURE

MAINS
HINTS
Date: 22.03.2025

Maximum Marks: 200

Ans 1
Order1 rule 10(2) of Code of Civil Procedure, 1908 (hereinafter CPC) provides for
impleadment of parties. Court may at any stage of the proceedings, either upon or
without the application of either party, order thar the name of any person who ought
to have been joined, whether as plaintiff or defendant. whose presence before the
Court may be necessary for proper adjudication ought to be joined.
But as per the settled position of law the plaintiffs are considered as the domius litis.
Unless the court suo motu directs to join any other person not party to the suit for
effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody
can be permitted to be impleaded as defendants against the wish of the plaintiffs.
In the present case it is required to be noted that the defendants in the suit filed
application under Order 1 Rule 10 CPC and prayed to implead Mrs Y as party
defendants as she is in the possession of the certain evidences against the title of
the plaintiff which would be helpful for proper adjudication of the suit, the same
application was opposed by the plaintiff. Therefore, Mrs Y cannot be impleaded as
the party defendants against the wish of the plaintiff. Not impleading any other
person as defendants against the wish of the plaintiffs shall be at the risk of the
plaintiffs. Then again, the evidences in the possession of Mrs Y can be brought on
record by the original defendants himself even without the impleadment of the Mrs
Yor she can be brought as Defendant Witness without being arrayed as a party to
the suit Therefore, Mrs Y could not be impleaded as party defendants in the
application submitted by the original defendants, that too against the wish of the
plaintiffs.
Refer-Sudhamayee Pattnaik and Others versus Bibhu Prasad Sahoo supreme
court 2022SC

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Ans 2
The main purpose of an interpleader suit is to resolve a situation where there are
competing claims over the same property or debt, and the plaintiff, who holds the
property or debt, is unsure to whom it should be transferred. The suit serves key
purpose of preventing multiplicity of proceeding.
Section 88 and Order XXXV, Code of Civil Procedure, 1908 (hereinafter CPC)

• Two or more persons claim same debts,

• sum of money or other property, movable/immovable,
• adversely to one another from another person claiming no interest except
charges/costs
• is ready to pay/deliver to rightful claimant, such other person may institute a
suit of interpleader against all the claimants

Provided that where any suit is pending in which the rights of all parties can
properly be decided, no such suit of interpleader shall be instituted.
1. Plaint to contain following:
(a) that the plaintiff claims no interest in the subject-matter in dispute
except charges/costs;
(b) claims made by the defendants severally; and
(c) that there is no collusion between the plaintiff and any of the
defendants.
2. Plaintiff may be required to pay or place it before court.
3. At the first hearing the Court may-
(a) declare that plaintiff is discharged from all liability, award him costs,
dismiss him from the suit; or
(b) if it thinks that justice or convenience so require, retain all parties until
the final disposal of the suit.
4. Court may adjudicate the title to the thing claimed on admission.
5. Where no admission, court may direct—
(a) that issue(s) between the parties be framed and tried, and
(b) that any claimant be made a plaintiff in lieu of or in addition to the
original plaintiff, and proceed to try the suit in the ordinary manner.
6. Agents and tenants may not institute interpleader suits except in certain
circumstances.

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Ans 3
As per Hulsbury’s Law of England, “Any civilized system of law is bound to provide
remedies for cases of what has been called unjust enrichment or unjust benefit, that
is to prevent a man form retaining the money or some benefit derived from another”

In the present facts, ‘A’ has been unjustly enriched. ‘B’ can apply for restitution under
Section 144 of Code of Civil Procedure, 1908 (hereinafter CPC) which provides for
the following conditions:
1. The restitution sought must be in respect of the decree or order which has
been revered or varied.
2. The party applying for restitution must be entitled to benefit under the
reversing decree or order.
3. The relief claimed must be properly consequential on the reversal pr variation
of the decree or order.
‘B’ cannot file a fresh suit, as provided in Section 144 (2) of CPC “No suit shall be
instituted for the purpose of obtaining any restitution or other relief which could be
obtained by application under sub-section (1) of Section 144of CPC.”

‘B’ can apply to Court which passed the decree or order which deemed to include:
(a) where the decree or order has been varied or reversed in exercise of appellate or
revisional jurisdiction, the Court of first instance
(b) where the decree or order has been set aside by a separate suit, the court of first
instance which passed such decree or order.

(c) where the Court of first instance has ceased to exist or has ceased to have
jurisdiction to execute, it, the Court which, if the suit wherein the decree or order was
passed were instituted at the time of making the application for restitution under this
section, would have jurisdiction to try such suit.

Ans 4
The purpose of such amendments is to determine the real question in controversy
between the parties

Recently Supreme Court reiterated the principles to be taken care of while allowing
the amendment application in the case of Ganesh prasad vs Rajeshwar Prasad 2023
SC
The prayer for amendment is to be allowed

1. If the amendment is required for effective and proper adjudication of the

controversy between the parties

2. To avoid multiplicity of proceedings, provided

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 (i) The amendment does not result in injustice to the other side,
(ii) By the amendment, the parties seeking amendment does not seek to
withdraw any clear admission made by the party which confers a right on
the other side and

(iii) The amendment does not raise a time barred claim, resulting indivesting of
the other side of a valuable accrued right (in certain situations).

A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in
which case the fact that the claim would be time barred becomes a
relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should
avoid a hyper technical approach, and is ordinarily required to be liberal
especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider
the dispute and would aid in rendering a more satisfactory decision, the
prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new
approach without introducing a time barred cause of action, the
amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the
absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the
prayer. Where the aspect of delay is arguable, the prayer for amendment
could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of
action, so as to set up an entirely new case, foreign to the case set up in
the plaint, the amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in the plaint, and is
predicated on facts which are already pleaded in the plaint, ordinarily the
amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court
is required to be liberal in its approach. The court is required to bear in
mind the fact that the opposite party would have a chance to meet the
case set up in amendment. As such, where the amendment does not
result in irreparable prejudice to the opposite party, or divest the opposite
party of an advantage which it had secured as a result of an admission by
the party seeking amendment, the amendment is required to be allowed.
Equally, where the amendment is necessary for the court to effectively

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 adjudicate on the main issues in controversy between the parties, the
amendment should be allowed.

Ans 5

The issues to be decided is- Whether res judicata of previous wrong decision of High
Court would apply on the subsequent petition filed by B?

Section 11 of Civil Procedure Code provide the principle of res judicata, as the
concept is based upon public policy its applicability is not restricted.

Essential to apply res judicata is as follows:

1. There must be two suit, first one being heard and finally decided
2. The title of the parties in both the suit must be same
3. The matter in issue between the parties in previously decided suit is same as
that in the subsequent suit
4. Court of previously instituted suit is competent to decide the subsequently
filed suit
In the present case, the matter in issue between the parties in the revision petition
was regarding capacity of the wife to appear on behalf of A as a power of attorney
holder despite being an advocate. B relied on section 32 of the Advocates Act 1961.
High Court upheld the decision of the trial court but clarified that the wife of the
plaintiff can appear in person as agent but not in her professional capacity as a
lawyer.

On the contrary B again filed a revision petition on the ground that the previous
decision of high court is per incuriam in light of division bench judgment of High
Court.
In the case of Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai in determining the
application of the rule of res judicata the Court is not concerned with the
correctness or otherwise of the earlier judgment. The matter in issue, if it is one
purely of fact, decided in the earlier proceeding by a competent Court must in a
subsequent litigation between the same parties be regarded as finally decided and
cannot be reopened. A mixed question of law and fact determined in the earlier
proceeding between the same parties may not, for the same reason, be questioned
in a subsequent proceeding between the same parties. Where the decision is on a
pure question of law with respect to substantive right of the party again res judicata
will apply, but if it is the case of pure question of law related procedural right of the
party res judicata will not apply if the erroneous decision is given by the previous
court.
In true application of these principles, the issue concerning the capacity of the wife of
A cannot be agitated over again by filing a revision petition before the high court,

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even if the earlier orders granting such permission to her are suggested to be
erroneous.

The decision given by the High Court dated 20.04.2018 was clear and unambiguous
that wife of A would be entitled to appear only as the GPA holder and not as an
advocate. This issue has already been heard and finally decided by the trial court
and subsequently by High Court.

Moreover, the decision of the High Court dated 20/04/2018 relates to mixed question
of law and fact therefore even if it is erroneous being per incuriam still res judicata of
the previous decision would apply.
A binding decision cannot lightly be ignored and even an erroneous decision remains
binding on the parties to the same litigation and concerning the same issue, if
rendered by a Court of competent jurisdiction. Such a binding decision cannot be
ignored even on the principle of per incuriam because that principle applies to the
precedents and not to the doctrine of res judicata.

Refer- S RAMACHANDRA RAO versus S. NAGABHUSHANA RAO & ORS 2022

SC.

Ans 6

Having regard to the facts noticed above, this appeal would require us to decide
whether the heirs of Om Prakash were required to file a separate application for
substitution when, admittedly, an application for substitution (Civil Misc. Substitution
Application No. 211 of 1997) had previously been filed by the heirs of Karan.
Order XXII of the Code of Civil Procedure is titled DEATH, MARRIAGE AND
INSOLVENCY OF PARTIES. Order XXII, Rule 4 CPC thereof lays down the
procedure in case of death of one of several defendants or of sole defendant. It is
clear on perusal of such rule that it does not expressly provide who between the
parties to a civil suit is to present an application for substitution.

Rules 3 and 4 of Order XXII CPC lay down respectively the procedure to be followed
in case of death of one of several plaintiffs when the right to sue does not survive to
the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives
or of the death of one several defendants or of sole defendant in similar
circumstances. The procedure requires an application for the making of the legal
representatives of the deceased plaintiff or defendant a party to the suit. It does not
say who is to present the application. Ordinarily it would be the plaintiff as by the
abatement of the suit the defendant stands to gain. However, an application is
necessary to be made for the purpose. If no such application is made within the time
allowed by law, the suit abates so far as the deceased plaintiff is concerned or as
against the deceased defendant.

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In Union of India vs. Ram Charan, AIR 1964 SC 215, the Court held that there is
no legal requirement that on the death of a defendant, an application for substitution
in all cases has to be made by the plaintiff only. Once an application has been made
by either party and the court has been informed about the death of a party and who
the heir(s)/legal representative(s) he has left behind, the only thing that remains for
the court is to pass an order substituting the heir(s)/legal representative(s). Such
being the case, we have no doubt in holding that the application moved by the heirs
of Karan (whereby the court was informed by them of his death and the heirs that he
had left behind, amounted to an application for substitution which was legally
permissible and valid.

Therefore, the issue is decided in negative. The second appeal which was dismissed
as abated would be set aside, since dismissal of a second appeal as abated despite
pendency of a valid substitution application would be considered as bad in law.
The facts are similar to the case of Om Prakash Gupta v. Satish Chandra, 2025
SC.
There is another equally important aspect, which merits our attention. When an
application praying for substitution had been made, then, even assuming that it does
not have an explicit prayer for setting aside the abatement, such prayer could be
read as inherent in the prayer for substitution in the interest of justice. The Apex
Court relied on the decision in Mithailal Dalsangar Singh v. Annabai Devram Kini.
This Court reiterated the need for a justice-oriented approach in such matters. Inter
alia, it was held that prayer to bring on record heir(s)/legal representative(s) can also
be construed as a prayer for setting aside the abatement

A prayer for bringing the legal representatives on record, if allowed, would have the
effect of setting aside the abatement as the relief of setting aside abatement though
not asked for in so many words is in effect being actually asked for and is
necessarily implied. Too technical or pedantic an approach in such cases is not
called for.
It is well to remember that the Code of Civil Procedure is a body of procedural law
designed to facilitate justice and it should not be treated as an enactment providing
for punishments and penalties. The laws of procedure should be so construed as to
render justice wherever reasonably possible.

Ans 7
The humanistic approach embodied in the Civil Procedure Code (CPC) emphasizes
that the delivery of justice takes precedence over procedural formalities. Procedure
serves the purpose of justice and should be interpreted flexibly to achieve fair
outcomes.

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The issue which is to be decided in this case is whether an appeal preferred under
Section 96(2) of CPC by a defendant against whom an ex parte decree has been
passed is maintainable even though his application for setting aside the ex-parte
decree under Rule 13 of order IX of CPC was dismissed.

An appeal against an ex parte decree in terms of Section 96(2) of the Code could be
filed on the following grounds: -

(i) the materials on record brought on record in the ex parte proceedings in

the suit by the plaintiff would not entail a decree in his favour, and
(ii) the suit could not have been posted for ex parte hearing.
In an application under Order 9 Rule 13 of the Civil Procedure Code 1908, apart
from questioning the correctness of an order posting the case for ex parte hearing, it
is open to the defendant to contend that he had sufficient and cogent reasons for not
being able to attend the hearing of the suit on the relevant date. When an ex parte
decree is passed, the defendant (apart from filing a review petition and a suit for
setting aside the ex parte decree on the ground of fraud) has two clear options: -
1. To file an appeal under section 96(2) CPC and
2. To file an application for setting aside the order in terms of Order 9 Rule 13
of the Code.

The Apex Court reiterated that though after dismissal of an appeal under Section 96
of CPC against ex parte decree, an application under Rule 13 of order IX of CPC will
not be maintainable, there is no bar on unsuccessful defendant adopting both the
remedies simultaneously. In such a case, if the regular appeal against the decree is
dismissed, obviously the application under Rule 13 of Order IX of CPC cannot
proceed. The reason is that the explanation to Rule 13 of Order IX of CPC clearly
lays down that where there has been an appeal against a decree passed ex parte
and the appeal has been disposed of on any ground other than withdrawal,
application for setting aside ex parte decree will not lie. However, Explanation I
appended to the said provision does not suggest that the converse is also true.
Therefore, by appraising the facts at hand wherein an application under Rule 13 of
Order IX of CPC is dismissed, the defendant can prosecute the appeal against the
decree as a right to prefer appeal under Section 96 CPC cannot be taken away in
absence of any express provision to the contrary in CPC. The Court held that when
the application under Rule 13 of Order IX of CPC filed by a defendant is dismissed,
the defendant cannot be permitted to raise a contention as regards the correctness
or otherwise of the order posting the suit for ex parte hearing and/or existence of a
sufficient cause for non-appearance of the defendant. However, the appeal can
always be decided on merits.

The facts are similar to the case of Bhanu Kumar Jain v. Archana Kumar & Anr,
(2005) 1 SCC 787.

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In the circumstance wherein the defendant did not avail the remedy under Rule 13 of
Order IX of CPC, it is open for him to agitate in the regular appeal against the decree
that the trial court had no justification for proceeding ex parte against the appellant.
In such a case, though the appellant would not be entitled to lead evidence in appeal
for making out a sufficient cause for his absence before the trial court, he can always
argue on the basis of the record of the suit that either the suit summons was not
served upon him or that even otherwise also, the trial court was not justified in
proceeding ex parte against him. The reason is that under Section 105 of CPC,
when a decree is appealed from, any error, defect or irregularity in any order
affecting the decision of the case can be set forth as a ground of objection in the
Memorandum of Appeal. Thus, in such a case, the appellant can always urge in an
appeal against the decree that an interim or interlocutory order passed during the
pendency of the suit affecting the decision of the case was illegal. Therefore, the
appellant, while challenging ex parte decree by filing an appeal, can always point out
from the record of the trial court that the order passed to proceed with the suit ex
parte against him was illegal.
Therefore, in the given matrix wherein the appellant has not filed application under
Rule 13 of Order IX of CPC, such a contention can be raised by him.

The facts are similar to the case of G.N.R Babu @ S.N. Babu v. Dr. B.C. Muthappa
& Ors. 2022 SC. 4213

Ans. 8
Order VIII Rule 6A of the Civil Procedure Code, 1908 (hereinafter referred to as
‘CPC’) was introduced to allow defendants to file counterclaim against the plaintiff's
suit. The main purpose of this provision is to avoid multiplicity of proceedings and
ensure that all related claims are adjudicated in the same suit.
The issues in the case at hand are as follows:

(i) Whether Order 8 Rule 6-A CPC mandates an embargo on filing the
counterclaim after filing the written statement?

(ii) If the answer to the aforesaid question is in the negative, then what are the
restrictions on filing the counterclaim after filing of the written statement?

Order VIII Rule 6A CPC allows a defendant to file a counterclaim against the
plaintiff's claim, provided that the cause of action arises before or after the filing of
the suit but before the delivery of defence.
In the case of Mahendra Kumar v. State of Madhya Pradesh (1987) held that Rule
6A does not bar filing of a counterclaim after the written statement, as long as it
meets the limitation period. The judgment in Jag Mohan Chawla v. Dera Radha
Swami Satsang (1996) reaffirmed that counterclaims should ideally be filed with the
written statement but does not explicitly bar later filing.
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The Hon’ble Supreme Court clarified that while there is no absolute bar on filing a
counterclaim after the written statement, courts have the discretion to allow or reject
such claims based on factors such as:
o Delay in filing

o Similarity between the suit and counterclaim

o Possible prejudice to the plaintiff

o Impact on the trial process

The time limitation for filing of the counterclaim, is not explicitly provided by the
legislature, rather only limitation as to the accrual of the cause of action is
provided. This does not mean that counterclaim can be filed at any time after filing of
the written statement. As counterclaim is treated to be plaint, generally it needs to
first of all be compliant with the limitation provided under the Limitation Act, 1963 as
the time-barred suits cannot be entertained under the guise of the counterclaim just
because of the fact that the cause of action arose as per the parameters of Order 8
Rule 6-A.
Order VIII Rule 6A does not mandate an embargo on filing a counterclaim after the
written statement. However, a counterclaim cannot be filed after issues have been
framed in the suit. There should be a balance between procedural flexibility and
ensuring a fair trial, preventing misuse of counterclaims to delay proceedings. A wide
discretion has been given to the civil court regarding the procedural elements of a
suit. As held by this Court, procedural law is not to be a tyrant but a servant, not an
obstruction but an aid to justice.
Thus, while courts have discretion to allow counterclaims after the written statement,
they must ensure that the interests of justice are upheld.
The facts in the present factual matrix have been borrowed from the judgment in
Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri & Ors. (2019 SC).

Ans 9
The present case needs to be discussed in light of S. 11 of the Code of Civil
Procedure 1908 (hereinafter ‘CPC’).
The purpose of Section 11 of CPC and its jurisprudential essence lies in the fact that
it is aimed at preventing multiplicity and uncertainty of judgments. It is based on the
constitutional principles of equity, justice and good conscience and it caters to larger
societal as well as individual interests.
Issue–

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 1. Whether the suit as setup by ‘A’ was barred by principle of res judicata
between the co-defendants in view of the decision in the earlier Suit filed
by Maharani?
2. Whether the earlier suit can be said to be heard and finally decided
between the parties, ‘A’ and Cantonment Board, with respect to the suit
land?

Relevant provision:
Section 11 of CPC provides for the following essentials:

1. Bar on court to try any suit or issue.

2. The matter directly and substantially in issue has been directly and
substantially in issue in a former suit.
3. It was between the same parties, or between parties under whom they or any
of them claim.
4. The parties were litigating under the same title.
5. It was in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised.
6. The matter has been heard and finally decided by such Court.
It is also a settled principle of law that res judicata applies not only between plaintiffs
and defendants but also between co-defendants also.
In the case of Govindammal v. Vaidiyanathan (2019 SC), the Hon’ble Supreme
Court observed three conditions, for applying the principle of res judicata between
the co-defendants, namely –
1. There must be a conflict of interest between the co-defendants
2. There is necessity to decide the said conflict in order to give relief to
plaintiff
3. There is final decision adjudicating the said conflict

As regards issue no. 1

In light of the above legal position, there was no conflict of interest between the co-
defendants in the earlier suit filed by Maharani, as ‘A’ was claiming independently
rights over 0.30 acres of land, and the cantonment Board over 2.55 acres of land.

Even assuming that there was any conflict, the adjudication of the said suit was not
necessary for granting any relief to Maharani, since she was claiming the entire
estate of 5.38 acres of land and her claim was defeated, with no specific finding by
the court regarding the claims set up by the co-defendants, resulting in their inter-se
dispute, being not adjudicated.
In the aforesaid facts and circumstances, principle of res judicata would not be
attracted as the issue in the present suit was neither directly or indirectly in issue in

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the previous suit and there was no conflict of interest between the co-defendants in
the said previous suit, which if any, never came to be adjudicated.

Thus, none of the conditions as laid down in the case between co-defendants stood
fulfilled for applying res-judicata.

As regards issue no. 2

The judgment and order of the previous suit which is final and conclusive, in no
specific terms adjudicates upon the right, title and interest of either of ‘A’ or of the
Cantonment Board, Ramgarh with regard to the suit land. In the said suit, there was
no issue with regard to the right, title and possession of either the plaintiff appellant
or of the Cantonment Board, Ramgarh and no finding in this connection was
returned by the court in dismissing the said suit. In simple words, the suit, as filed by
Maharani claiming right, title and interest over 5.38 acres of land of village Ramgarh
was dismissed simpliciter without adjudication of any rights of the plaintiff-appellant
over the suit land vis-à-vis the Cantonment Board, Ramgarh.

Hence, it cannot be said that the present issue between ‘A’ and Cantonment Board
was heard and finally decided.

Accordingly, the suit filed by the appellant plaintiff claiming title over the suit land
against the Cantonment Board is not barred under Section 11 of the CPC.

Facts based on: Har Narayan Tewari v. Cantonment Board, Ramgarh

Cantonment (SC 2024)

Ans 10
Issue to be decided in the present case are:

1. Whether an amendment made in the substantive law could be applicable

while a preliminary decree is pending?

2. Whether the compromise entered by the party in the partition suit valid in the
eyes of law as per Order XXIII Rule 3 of CPC?
3. Whether an appeal by A can be filed to challenge the compromise decree
between B and C in light of Section 96 of CPC?
With respect to 1st issue

A preliminary decree determines the rights and interests of the parties. The suit for
partition is not disposed of by passing of the preliminary decree. It is by a final
decree that the immovable property of joint Hindu family is partitioned by metes and
bounds.

After the passing of the preliminary decree, the suit continues until the final decree is
passed. If in the meantime, after passing of the preliminary decree and before the

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final decree is passed, the events and supervening circumstances occur
necessitating change in shares, there is no impediment for the court to amend the
preliminary decree or pass another preliminary decree redetermining the rights and
interests of the parties having regard to the changed situation.

The court in the case of Vineeta Sharma vs Rakesh Sharma held that even though
filing of partition suit brings about severance of status of jointness, such legislative
amendment or subsequent event will have to be taken into consideration and given
effect to in passing the final decree in the partition suit. This is because, the partition
suit can be regarded as fully and completely decided only when the final decree is
passed. It is by a final decree that partition of property of joint Hindu Family takes
place by metes and bounds. Therefore, the amendment to the substantive law could
be applicable to the rights of the parties during the pendency of suit after passing of
the preliminary decree.
Thus, issue is decided in affirmative

With respect to 2nd issue

In the case of Gurpreet Singh v. Chatur Bhuj Goel, it has been said Under Order
XXIII Rule 3 when a claim in suit has been adjusted wholly or in part by any lawful
agreement or compromise, the compromise must be in writing and signed by all the
parties and there must be a completed agreement between them. To constitute an
adjustment, the agreement or compromise must itself be capable of being embodied
in a decree. Therefore, all the parties must be made a party to the consent decree
and if any of the party is excluded then such a consent decree will not be considered
good in law and will not be implemented.

In the present case settlement deed dated 23.03.2004 whereby B relinquished share
in the joint property in favour of C in lieu of consideration of Rs 50000 cannot be
relied upon because the plaintiff has not put her signature on the deed of settlement.
The Plaintiff has made herself very clear that she never joined in the settlement
between her brother and her sister. On this ground alone, the settlement could be
said to be unlawful, being without any written consent of all the parties. In a suit for
partition of joint property, a decree by consent amongst some only of the parties
cannot be maintained.

Thus, issue is decided in negative

With respect to 3rd issue

When Section 96(3) CPC bars an appeal against decree passed with the consent of
parties, it implies that such decree is valid and binding on the parties unless set
aside by the procedure prescribed or available to the parties. In the case of
Prasantaa kumar Sahoo vs Charulata Supreme Court (2023) court held that such
procedure has been given under Rule 1-A (2) of Order 43 to a party, who challenges
the recording of the compromise, to question the validity thereof while preferring an
appeal against the decree. Section 96(3) of the Code shall not be a bar to such an
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appeal because Section 96(3) is applicable to cases where the factum of
compromise or agreement is not in dispute. Thus, in the present case as the factum
of agreement is in dispute such appeal will be allowed to challenge the compromise
decree.

Thus, Issue is decided in affirmative.

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