M/S. CHITRALEKHA BUILDERS & ANR. THROUGH ANIL G. SHAH POWER OF ATTORNEY & HUSBAND OF THE PARTNER versus EMPLOYEES SONAL VIHAR CO-OP. HOUSING SOCIETY LTD. & ANR.

Citation: [2021] 2 S.C.R. 124 · Decided: 01-03-2021 · Supreme Court of India · Bench: INDU MALHOTRA · Disposal: Disposed off
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Judgment (excerpt)

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SUPREME COURT REPORTS
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   [2021] 2 S.C.R. 124
M/S. CHITRALEKHA BUILDERS & ANR.
THROUGH ANIL G. SHAH POWER OF ATTORNEY &
HUSBAND OF THE PARTNER
v.
G.I.C. EMPLOYEES SONAL VIHAR CO-OP. HOUSING
SOCIETY LTD. & ANR.
(Civil Appeal No. 946 of 2016)
MARCH 01, 2021
[INDU MALHOTRA AND AJAY RASTOGI, JJ.]
Code of Civil Procedure, 1908 – s.96 – Right of appeal –
Appeal against judgment of High Court dismissing appeal filed by
appellants against Consent Order dated 16.02.2005 in Suit No.
1335/1988 to which appellant was not signatory – Appellants were
not a party to the proceedings at the stage when the consent order
came to be passed on 16.02.2005, or the subsequent consent order
dated 03.10.2005 in Suit No. 1335 / 1988 – High Court in the
impugned judgment, recorded a finding that since Appellants were
not a party to the proceedings, and the Order dated 16.02.2005
was passed on the terms agreeable to the parties to the proceedings,
it shall not be binding upon the Appellants, and their rights could
be examined independently in the substantive suit No. 3162 / 2005
filed at their instance (which is pending adjudication before High
Court) – Propriety – Held: Proper – Since the Appellants were not
a party to the Consent Terms as evident from the record, when the
Orders came to be passed on 16.02.2005 followed with 03.10.2005,
it may not bind the Appellants – Its legal effect is open to be
examined in the substantive suit filed at their instance independently
on its own merits in accordance with law – Party – Consent decree.
Disposing of the appeal, the Court
HELD:1. Suit No. 1335/1988 was disposed of by the Court
on the consent terms arrived between the parties to the
proceedings vide Order dated 16.02.2005 followed by Order dated
03.10.2005. In the given circumstances, the Appellants who were
later impleaded, have a right of appeal under Section 96 of the
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CPC. However, since the Appellants were not a party to the
Consent Orders, it was not open for the Court to examine the
legal effect of the Consent Orders dated 16.02.2005 and
03.10.2005 to which the Appellants were not a party. Once the
substantive suit has been filed at their instance questioning the
Consent Orders dated 16.02.2005 followed by 03.10.2005, the
same is indeed open to be examined independently on its own
merits in the pending proceedings initiated at their instance. [Para
19][135-D-G]
2. So far as the rights of the Appellants are concerned, the
same have been duly protected by the High Court in the impugned
judgment. The observations/findings which were recorded by the
High Court in the impugned judgment, in no manner, prejudiced
the rights of the Appellants, and the pending Suit No. 3162/2005
filed by the Appellant may be examined by the Court
independently on its own merits in accordance with law without
being influenced by the observations made by the High Court in
the impugned judgment. [Para 20][135-G-H; 136-A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 946 of
2016.
From the Judgment and Order dated 22.07.2014 of the High Court
of Bombay in Appeal No. 558 of 2007 in Suit No. 1335 of 1988.
Nikhil Nayyar, Sr. Adv. (A.C.)
Jay Savla, Sr. Adv., Ms. Prerna Mehta, O. P. Bhadani, Advs. for
the Respondents.
Anil G. Shah, Appellant-in-person
The Judgment of the Court was delivered by
INDU MALHOTRA, J.
1. The present Civil Appeal has been filed assailing the Judgment
and Order dated 22.07.2014 passed by the Bombay High Court in Appeal
No. 558 / 2007 dismissed the appeal filed by the appellants against the
Consent Order dated 16.02.2005 in Suit No. 1335 / 1988 to which the
appellants are not the signatory to the proceedings
2. The lis pertains to land admeasuring 5082 square yards bearing
Survey No. 218, CTS No. 727 situated in Village Mulund, Greater
M/S. CHITRALEKHA BUILDERS & ANR. v. G.I.C. EMPLOYEES SONAL
VIHAR CO-OP. HOUSING SOCIETY LTD.
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Bombay. The background facts of this litigation are briefly stated as
follows :
(i)
An Agreement to Sell dated 28.04.1980 was executed
between Defendant Nos. 1 to 52-Vaity family and the
Plaintiff-M/s. Chitralekha Builders (then comprising of one
Kusum Gorule and Tukaram Baliram Nalwade), whereby
the Vaity family undertook to execute a Deed of
Conveyance in favour of Chitralekha Builders, or its
nominees, on receipt of Rs.35,00,000 towards the balance
consideration.
(ii)
On 09.05.1980, M/s. Chitralekha Builders e
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