1 16 caf.3277.10 w 2984.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3277 OF 2010 WITH CIVIL APPLICATION NO. 2984 OF 2010 IN FIST APPEAL (stamp) NO. 19900 OF 2010 Sou. Chanda Ajit Naik. ... Applicant Versus Smt. Vijayalaxmi Vinodkumar Singh and others. ... Respondents ----- Mr. S.G.Deshmukh i/b Mr. G.T.Kanchanpurkar for the Applicant. Mr. U.S.R.Singh for Respondent No.1. Mr. M.S.Singh for Respondent Nos.3 and 4A. ----- CORAM : A.S.OKA, J. DATE : 24 th August, 2011. P.C. 1 Civil Application No.2984 of 2010 has been filed by the Applicant seeking leave to prefer an appeal for challenging the decree passed in S.C. Suit No.2908 of 1988. Civil Application No.3277 of 2010 is filed for condonation of delay in preferring an appeal. 2 The case of the Applicant is that she is entitled to a share 2 16 caf.3277.10 w 2984.10 in the properties subject matter of dispute in the suit, but she was not made a party to the suit and a collusive consent decree has been obtained. 3 Perusal of the impugned decree shows that the decree has been passed by the trial Court by consent of the parties. Therefore, the question is whether the bar under sub-Section (3) of Section 96 of the Code of Civil Procedure Code, 1908 will apply. The learned counsel appearing for the Applicant relies upon a decision of the Division Bench of Patna High Court in the case of Mathura Singh and others Vs. Deodhari Singh and others [AIR (1972) Patna 17]. He submits that as the Applicant was not a party to the suit in which the consent decree has been passed, the bar under sub-Section (3) of Section 96 of the said Code will have no application. He also placed reliance on a decision of the Calcutta High Court in a case reported in (XX Calcutta Weekly Notes 178) in support of his proposition. 4 Sub-Section (3) of Section 96 of the said Code reads thus: 3 16 caf.3277.10 w 2984.10 “(3) No appeal shall lie from a decree passed by the Court with the consent of parties.” 5 It is true that a person whose is not a party to a suit can prefer an appeal against the decree passed in the suit after obtaining leave of the Appellate Court. However, there is nothing in Sub-Section (3) of Section 96 of the said Code to indicate that the bar will not be attracted if the appeal is preferred by a person who is not a party to the suit. In the facts of the case before the Patna Hight court, the consent decree was passed without the consent of all the parties to the suit and therefore, the Court held that a decree passed without the consent of all the parties to the suit cannot be regarded as a consent decree. Therefore, the said decision will not help the Applicant. Perusal of the decision of the Calcutta High Court shows that it is observed that it is clear that although a person who is a party to compromise cannot challenge the validity of the consent decree by way of appeal, it is competent to a party to a suit who has not been joined in the compromise to appeal against the decree, if he has been prejudiced 4 16 caf.3277.10 w 2984.10 thereby. 6 The said decision of Calcutta High Court does not deal with the bar created by sub-Section (3) of Section 96 of the said Code in relation to a third party. In my view, the bar created by sub-Section (3) of Section 96 of the said Code will be squarely attracted in the present case. However, the Applicant is not a party to the consent decree. Hence, it is obvious that the consent decree will not bind the Applicant in any manner. Moreover, the other remedies of the Applicant remain open. 7 Hence, subject to what is observed above, the applications are dismissed only on the ground that the appeal is not maintainable. 8 Civil Application No.3278 of 2010 and the Civil Application No.2454 of 2011 do not survive and the same are disposed of. [ A.S.OKA, J ]