1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODGING) NO. 24 OF 2008 IN CHAMBER SUMMONS NO.1194 OF 2007 IN SUIT NO.3033 OF 1994 & IN SUIT NO.1791 OF 1994 1) Ramzanali Gulam Hussain Ramodiya ) of Bombay, Age 62 years, Indian ) Inhabitant, residing at Vaibhav Apartm- ) -ent, "C" Wing, 5th Floor, Flat No.1, Old ) Prabhadevi Road, Worli, Bombay - ) 400 025. ) ) 2) Phiroz Gulam Hussain Ramodiya ) of Bombay, Age 55 years, Indian ) Inhabitant, residing at Manjrekar ) Sadan, 1st Floor, Flat No.4 Dr. A.B. ) Road, Worli, Bombay 400 025. ) ....Appellants. )(Orig. Applicants No. 1& 2) Versus 1) Hamida Karim Ramodiya ) of Bombay Indian Inhabitant, ) residing at C/o. Mr. Rajabh Premji ) 101, Vrindavan, 32, Mount Marry ) Road, Bandra (West), Mumbai -400050 ) ) 2) Nushrat Rajabali Ramodiya ) of Bombay Indian Inhabitant, ) residing at 504, Delux Building ) Silver Jubilee Hsg. Society, P.G. Road, ) 2 Sikandrabad - 500 003. ) Also guardian of Minors ) 1) Master Aleem H. Ramodiya ) 2) Miss Rhea R. Ramodiya ) ....Respondents ) (Org. Plaintiffs) ) 3) Pyarali Ramodiya, ) Bombay Indian Inhabitant ) residing at Vaibhav Apts, ) B- Wing, 1st Floor, Flat No.1, ) Old Prabhadevi Road, Bombay 400025. ) ) 4. Aminabai G.Ramodiya(since deceased) ) 5. Amirali Ramodiya, ) Bombay, Indian Inhabitant, ) residing at, Manjrekar Sadan, ) 1st Floor, Flat No.4, Dr. A.B. Road, ) Worli, Bombay - 400 025. ) ....Respondents. (Org. Applicant Nos.3,4 & 5) ---- Mr. D.D. Madan alongwith Mr. J.S. Kini i/b Suresh Dubey for the appellants. Mr. P.K. Samdani for Respondent No.1. Mr. K.S. Jain for Respondent No.2. ----- CORAM: SWATANTER KUMAR, C.J. AND V.M.KANADE, J. Order reserved on 19/06/2008 Order pronounced on 29/08/2008 3 P.C. (Per V.M. Kanade, J.) 1. This appeal is filed against the order passed by the learned Single Judge on 13th/14th September, 2007 in Chamber Summons No.1194 of 2007 in Execution Application No.20 of 1998 in Suit No.3033 of 1994 & in Suit No.1791 of 1994. The Chamber summons was taken out on behalf of the original applicants for an order that the Consent Decree dated 22nd April, 2006 passed in Suit No.1791 of 1994 is without jurisdiction and, therefore, the same is a nullity. 2. Brief facts are that three suits were filed by the appellants and the respondents respectively. In the said suits, a mediator was appointed who submitted a report which was accepted by both the parties and the consent terms were filed in terms of the mediator's report and a decree was passed in terms of the consent terms. The consent terms were challenged on various occasions on various grounds by the appellants herein. However, all the proceedings which were taken out by the appellants were dismissed and the orders passed by this Court were confirmed right up to the Supreme Court. The appellants had, on earlier occasions also, raised an issue of the 4 decree being nullity on various other grounds. However, the challenge to the validity of the decree on the ground that it is a nullity was not accepted by this Court as also the Apex Court. Thereafter in fresh round of litigation, this Chamber Summons has been taken out and it is contended by the appellants that the Consent Decree is a nullity since interest has been awarded @ 15% per annum. It is the case of the appellants that under section 34 of the Civil Procedure Code, 1908 the Court does not have jurisdiction to grant interest at the rate which is in excess of 6% per annum from the date of institution of the suit till realization. It is the case of the appellants that only where liability arises out of commercial transaction, the Court is empowered to award further interest at the rate except 6% per annum. It was further submitted by the learned Counsel appearing on behalf of the appellants that the Chamber Summons was not barred by principle of res judicata or the principle of constructive res judicata since the validity of the decree was challenged on the ground that it is a nullity and that the principle of res judicata would not apply in such a case. 3. The learned Counsel appearing on behalf of the appellants relied on various judgments of the Apex Court and this Court in support of 5 the said submissions. The learned Counsel appearing on behalf of the respondents pointed out that the said issue could not be re- adjudicated by the appellants. He also invited our attention to the various judgments of this Court and the Apex Court in support of his submission. 4. The learned Single Judge, after considering the earlier proceedings and orders passed from time to time, held that the appellants were not entitled to any of the prayers in the Chamber Summons as the proceedings were finally culminated in a decree and did not accept the submissions made by the Counsel for the appellants. 5. We have heard the learned Counsel for the parties. In our opinion, the order passed by the learned Single Judge impugned in the present appeal deals with all the contentions raised on behalf of the appellants. The learned Single Judge has noted all the judgments which were relied upon by the Counsel for the appellants and also noted the judgments and orders passed by number of learned Single Judges of this Court as also the Apex Court and has given cogent reasons why the judgments on which reliance is placed by the learned 6 Counsel for the appellants cannot be accepted. He has also noted the observations made by the learned Single Judges of this Court in the orders passed in various Chamber Summonses taken out by the appellants. In our view, the learned Single Judge has, therefore, rightly come to the conclusion that the submission of the appellants that the decree is a nullity had already been raised in number of proceedings and that the said issue was already decided. It is, therefore, not open for this Court to go into the said question again. 6. We do not see any infirmity in the order passed by the learned Single Judge. The appeal deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs. CHIEF JUSTICE V.M. KANADE, J.