SAKINA SULTANALI SUNESARA (MOMIN) versus SHIA IMAMI ISMAILI MOMIN JAMAT SAMAJ & ORS

Citation: [2025] 4 S.C.R. 1921 · Decided: 23-04-2025 · Supreme Court of India · Bench: VIKRAM NATH · Disposal: Dismissed

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Judgment (excerpt)

[2025] 4 S.C.R. 1921 : 2025 INSC 570
Sakina Sultanali Sunesara (Momin) 
v. 
Shia Imami Ismaili Momin Jamat Samaj & Ors.
(Civil Appeal No(s). 6681-6682 of 2023)
23 April 2025
[Vikram Nath and Prasanna B. Varale,* JJ.]
Issue for Consideration
Issue arose whether a litigant who was already a party to the suit, 
yet contests the fact or legality of a compromise embodied in a 
decree, is restricted to an application before the trial court under 
the proviso to Ord. XXIII r.3 CPC or may maintain a first appeal 
u/s.96 CPC notwithstanding s.96(3) CPC.
Headnotes†
Code of Civil Procedure, 1908 – s.96, Ord.XXIII r.3, Ord.XLIII 
r.1A(2), r.1(m) – Compromise of suit – Appeals from original 
decrees – Right to challenge non-appealable orders in appeal 
against decree – Dispute between parties regarding sale deeds 
of suit land – Suit by respondent against the appellants wherein 
compromise between the parties resulting in first consent 
decree, thereafter another compromise in the suit filed leading 
to second consent decree – Appellant’s case that she had 
no notice of either compromise and both consent decrees 
obtained by fraud – Appellant filed AOs against both decrees 
u/Ord.XLIII r.1A – Transferee purchasers lodged parallel AOs – 
Single Judge of High Court, acting on the pronouncement of 
the larger bench that party to suit must first invoke proviso 
to Ord.XXIII r.3 and r.1A itself creates no independent right of 
appeal, dismissed AOs – Interference: 
Held: High Court’s directions correctly apply the structure of the 
statute and does not call for interference – Larger Bench took the 
right view that such appeals are incompetent since 1976 – CPC, 
after the 1976 amendment, works in two distinct ways – If a 
person was already a party to the suit, and denies that any lawful 
compromise ever took place, CPC requires that person to go back 
to the trial court under the proviso to Ord.XXIII r.3 and ask that 
Court to decide whether the compromise is valid – Someone who 
was not a party to the suit, but whose rights are hurt by a consent 
* Author
1922
[2025] 4 S.C.R.
Supreme Court Reports
decree, may approach the appellate court in a first appeal u/s.96, 
but only after obtaining leave – Proviso to Ord. XXIII r.3 is not 
optional, it is the exclusive first port of call for any party on record 
who denies the compromise – Ord. XLIII r. 1-A does not create a 
new right of appeal; it merely enables an appellant, already before 
the appellate court, to attack the decree on the ground that the 
compromise should not have been recorded – When the fact of 
compromise is not disputed, the bar in s. 96(3) is absolute – On 
facts, the appellant never invoked the proviso to Ord.XXIII r.3 and 
instead lodged appeals from orders on the footing of the deleted 
Ord.XLIII r.1(m) – It cannot be said that fraud transform a consent 
decree to an ordinary decree – Fraud, want of authority or other 
vitiating elements are precisely the matters that the proviso directs 
the trial court to examine – Unless and until that route is pursued, 
the statutory bar in s.96(3) remains operative – Appellant was a 
party to the suits and cannot appropriate remedy reserved for third 
parties. [Paras 8, 11-17]
Case Law Cited
Pushpa Devi Bhagat v. Rajinder Singh and others [2006] Supp. 
3 SCR 370 : (2006) 5 SCC 566; Banwari Lal v. Chando Devi and 
another [1992] Supp. 3 SCR 524 : (1993) 1 SCC 581; Triloki Nath 
Singh v. Anirudh Singh [2020] 4 SCR 650 : 2020 SCC Online 
SC 444; H.S. Goutham v. Rama Murthy and another [2021] 4 
SCR 996 : (2021) 5 SCC 241; Kishun Alias Ram Kishun (Dead) 
through LRS. v. Behari (Dead) By LRS. [2005] Supp. 2 SCR 
383 : (2005) 6 SCC 300; Sree Surya Developers & Promoters v. 
N. Sailesh Prasad and others [2022] 3 SCR 1081 : (2022) 5 SCC 
736 – referred to.
List of Acts
Code of Civil Procedure, 1908; Legal Services Authorities Act, 1987.
List of Keywords
Consent decree; Compromise; No independent right of appeal; 
Order recording or refusing a compromise; No separate appeal; 
No appeal against consent decree; Fraud; Legality of compromise; 
Legality of compromise embodied in decree; First appeal; 
Compromise of suit; Sale deeds; First consent decree; Second 
consent decree; Transferee purchasers; Independent right of 
appeal; Remedy reserved for third parties.
[2025] 4 S.C.R. 
1923
Sakina Sultanali Sunesara (Momin) v. 
Shia Imami Ismaili Momin Jamat Samaj & Ors.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 6681

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