Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. It is not a case where the original plaintiff applied for withdrawal of the suit similicitor. She did so relying on or on the basis of a compromise entered into by and between the parties. If a suit is to be decreed or dismissed on the basis of a compromise, even permission to withdraw the suit pursuant thereto, G in our opinion, order XXlll Rule 1 of the Code may not have any . _. application. Even in such a case, a permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit. The Court H r for the purpose of allowing withdrawal of a suit after passing the …. decree, viz., at the appellate stage, is required to consider this aspect of the matter. Veena, although was a plaintiff, did not claim any exclusive title to the property in herself. She claimed title to the property as one of the daughters of Munni Devi. Interest of the appellant and her other sisters and brothers also stood on the same footing. They also, for all intent and purport: could have independently maintained a suit either in their individual capacities or jointly.
20. The claim put forth by Raghbir Singh on the basis of c an oral 'hiba' purported fo have been made by Banu Mal before the Revenue authorities was found to be tainted with fraud. A finding of fact was arrived at that no s~ch transaction had taken place as Banu Mal was seriously ill and had bee,,n residing at &ome other place. The learned Trial Judge also arrhled at a finding that before the Revenue Authorities, a misrepresentation had been made stating that. Banu Mal was issueless. y
21. Things as they stand now, there cannot be any doubt or dispute that the appellant is one:. of the heirs and legal representatives of Banu Mal being a daughter of Munni Devi. She, therefore, indisputably was entitled to a share in the property of Munni Devi as one of her legal heirs. Even if Order XXlll, Rule 1 of the Code of Civil Procedure was applicable, in terms of Rule 1 A of the said Order, the appellant as a defendant in the suit could have applied for being transposed as a plaintiff in terms of Order I Rule 10 of the Code of Civil Procedure and the Court was bound to pass an order having due regard to the question as to whether she had a substantial question to be decided as against any of the other defendants. Aappellant, indisputably, claimed and was found to have rightly claimed a share in the suit property. ….. , Having got a decree in her favour, she was entitled to -4 protect the same. By reason of an agreement between some of the parties or otherwise, a litigant cannot be deprived from the fruit of the decree. SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.]
22. Order XXlll, Rule 3 of the Code of Civil Procedure A provides that a compromise decree is not binding on such defendants who a(e-not parties thereto. As the appeal has been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been disposed of.
23. The court has also a duty to prevent injustice to one of the parties to the litigation. It cannot exercise its jurisdiction to allow the proceedings to be used to work as substantial injustice. A consent decree, as is well-known, is merely an agreement c between the parties with the seal of the court supetadded to if {See Baldevdas Shivlal and Another v. Filmistan Distributors (India) P. Ltd. and Others [(1969) 2 SCC 201], ParavvaAflavva Hittalamani v. Sri Paravva Gurulingayya Poojari and Ors. [JT 2007 (12) SC 352]}. –.i
24. If a compromise is to be held to be binding, as is well known, must be signed either by the parties or by their counsel or both, failing which Order XXlll, Rule 3 of the code of Civil Procedure would not be applicable. {See Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC 270]} In Dwarka Prasad Agarwal (Dl By LRS. and Another v. B.D. Agarwal and Others [(2003) 6 SCC 230], this Court held: "32. The High Court also failed and/or neglected to take into consideration the fact that the compromise having been entered into by and between the three out of four partners could not have been termed as settlement of all disputes and in that view of the matter no compromise G could have been recorded by it. The effect of the order. dated 29~6-1992 recording the settlement was brought to the notice of the High Court, still it failed to rectify the mistake committed by it. The effect of the said order was grave. It was found to be enforceable. It was construed to H be an order of the High Court, required to be implemented -4 .. by the courts and the statutory authorities. 35 … Even if the provisions of Order 23 Rule 3 of the Code of Civil Procedure and/or principles analogous thereto are held to be applicable in a writ proceeding, the Court cannot be permitted to record a purported compromise in a casual manner. It was suo motu required to address itself to the issue as to whether the compromise was a lawful one and, thus, had any jurisdiction to entertain the same … c {See also K. Venkatachala Bhat and Another v. Krishna Nayak (d) f>y LRs. and Others [(2005) 4 SCC 117]}. In R. Rathinavel Chettiar and Another v. V. Sivaraman and Others [(1999) 4 SCC 89], this Court opined : "22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the ~uit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested rights. The impugned judgment of the )I High Court in which a contrary view has been expressed cannot be sustained."
25. It is also not a case where the compromise can be said to be a family arrangement. A family arrangement must be entered into by all the parties thereto. Compliance of the G requirements laid down in Order XXlll, Rule 3 of the Code of Civil Procedure is imperative in character. A compromise or satisfaction must satisfy the conditions of a lawful agreement. -4
26. Causes of action of both the suits furthermore were different. The subject matter of the suit was also different although may be overlapping to some extent. If the compromise SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.] It' entered into by and between the parties to Suit No. 303of1999 A was to be given effect to, the same for all intent and purport clearly goes to show that Bhanu Mal had the title over the property. The learned Trial Judge in Suit No.185 of 1989 having found that Bhanu Mal did not pass his title by way of oral Hiba/ gift in favour of Raghbir Singh, subject to the conditions in the B Will, his title must be held to have been accepted. Bhnau Mal, therefore, could dispose of his property in accordance with law. j If Raghbir Singh did not acquire any title by reason of oral Hiba, on his death, subject to proof of compliance of the terms of the Will, the same must be held to have vested in Munni Devi and c on her death upon her children.
27. Title to a property must be determined in terms of the statutory provision. If by reason of the provisions of the Hindu Succession Act, 1956 the appellanfherein had derived title to the property along with her brothers and sisters, she cannot be D deprived thereof by reason of an agreement entered into by and between the original plaintiff and the contesting defendants. If a party furthermore relinquishes his or her right in a property, the same must be done by a registered instrument in terms of the provisions of Indian Registration Act.
28. It is also well known that a suit cannot be withdrawn by a party after he acquires a privilege. In R. Ramamurthy Ayer v. Raja V. Rajeswara Rao [(1972) 2 SCC 721], this Court held: "12. Coming back to the question of withdrawal of a suit F in which the provisions of Sections 2 and 3 of the Partition Act have been invoked we find it difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under Section 2 of the Partition Act and the defendant has G applied to the court for leave to buy at a valuation the share of the plaintiff under Section 3. In England the position about withdrawal has been stated thus, in the Supreme Court Practice, 1970 at p. 334: "Before Judgment.- Leave may be refused to a plaintiff H to discontinue the action if the plaintiff is- not wholly dominus ~ 'i' litis or .if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him." As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under Section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after gettin-g the same done tq~offer to sell the same to such shareholder at the valyation so made. This advantage, c …._. – — which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of Section 3(1) it would only enable the plain~iff to defeat the purpose of Section 3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under Section 2 instead of pa_rtitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeatthe defendant's claim which, according to Crump J., cannot be don_e even in a suit where the provisions ofthe Partition Act have not bee0; invoked." Yet again in R.Hathinavel Chettiar v. V. Sivaraman [(1999) 4· SCC 89], this Court, stated the law, thus : "22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, ,_ to withdraw the suit so as to destroy that decree. The -.\. rights which have come tci be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.] shown that the withdrawal would not affect or prejudice 'A anybody's vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained."
29. A right to withdraw a suit in the suitor would be unqualified, if no right has been vested in any other party. [See 8 Bijayananda Patnaik v. Satrughna Sahu and Ors. [(1964) 2 SCR 538] and Hulas Rai Baij Nath v. Firm K.B. Bass & Co. [(1967) 3 SCR 886].
30. If the contention of Mr. DY"ivedi that parties had entered c into a comprehensive agreement covering both the suits was correct, there was absolutely no reason as to why the appellant or others were not made parties to the second consent decree as well. While entering into a comprehensive agreement, the parties are bound to see that terms of one agreement do not come in conflict with the terms and conditions of the other. When D · the parties have separately entered into more than one agreement, either one is dependant of the other or both are independent of each other. In the latter case, signing of the agreement by the parties or their counsel thereon must be held to be imperative in character. Amteshwar Anand v. Virender Mohan Singh and Others ((2006) 1 sec 148], whereupon reliance has been placed by Mr. Dwivedi, is a case of family settlement. Three agreements entered into therein were found to be in consonance with each F other.
31. Herein, we are not concerned with the effect of the earlier litigation. We are also not concerned with regard to the conduct of Smt. Veena Nirvani vis-a-vis the appellant and the other defendants and/or as to whether the litigation was being G fought through the lawyers of the same chamber. Both the suits were compromised. Indisputably, the date fixed in the matter was July, 1998. The impugned compromise petition, however, was filed on 25.04.1998. For the aforementioned H purpose, the date was preponed. Indisputably, the appellant was ~ 1' not informed thereabout. She was not given any notice of preponement of the date. The question as to whether the appellant knew thereabout or not is essentially a question of fact to which we would advert to a little later. It is, however, difficult for us to agree with the High Court as also the submissions of Mr. Dwivedi that the compromise was a comprehensive one.
32. The learned Additional District Judge, on the basis of the materials brought on record by the parties arrived at a finding l of fact that the settlement was not a comprehensive one. He, c furthermore, opined that none of the respondents appeared in the witness box to substantiate the terms and conditions of the compromise nor did they examine any other witness. The purported circumstances that Smt. Veena Nirwani was at the helm of the affairs in respect of both the matters sought to be emphasized before us being not based on any material on record, we are of the opinion that the finding of the High Court that a comprehensive settlement was arrived at must be held to be wholly incorrect.
33. The High Court moreoverwas exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been fol)nd by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/ or in arriving the said findings, the learned Additional District Judge failed and/ or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable. ,…_ {See Yeshwant Sakhalkar and Another v. Hirabat Kamat Mhamai and Another [(2004) 6 SCC 71]}. It is on the aforementioned backdrop, we may consider SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.] …. the legal effect of non-signing of the compromise petition by the A appellant herein as also the respondent Nos. 4 to 8 herein.
34. We have noticed hereinbefore that not only the properties were different, the nature of the litigations was different. Even the parties were different. Both the compromise B petitions do not refer to each other. Assuming that the parties knew thereabout, it is beyond anybody's comprehension as to t why signature of all the parties were not obtained for the aforementioned purpose, if not for any other reason, but to satisfy the requirements of law. c
35. Appeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999 were pending before differert courts and in that view of the matter it is difficult to agree with the High Court that only for that purpose, the date in the appeal was preponed. Even otherwise, in law, they are not members of the same family. D They have been inherited definite share from their predecessors.
36. The question of estoppel and/or election as also the doctrine of approbate ·or reprobate, whereupon reliance has been placed, has exceptions, one of them being that there is no estoppel against statute.
37. Submission of the learned senior counsel that Veena and the appellant were in the same boat as would appear from the fact that they had engaged lawyers from the same chamber and, in fact, the l;:iwyer of the appellant had no independent F practice itself would go to show that she knew about both the compromise petitions cannot be accepted. A counsel appearing for a party is expected to be independent. There is no presumption that only because two laWYers are practicing from the same chamber, they would breach their confidentiality or G ·commit some act which would amount to professional misconduct. Only because two compromise petitions were filed on the same day or Veena was a party to both of them, in our opinion, would not by itself lead to any inference that appellant also knew about the second compromise through her counsel. H We would, however, deal with the question of her acquiring ,, … knowledge thereof at appropriate stage.
38. Whether the preponement of ._!he date was only at the instance of Veena or at the instance of both the parties to the consent is a matter which is ·of little relevance so far as this Court is concernedjnasmuch as the only issue which would arise for our consideration is the consequences of such preponement. If the·· hearing of a case is preponed, it should be done with notice to all the parties. It is not the case of the first respondent that notice had been given to all the parties or otherwise also c they were aware thereof.
39. In that view of the matter, it is difficult to accept the submission of Mr. Dwivedi that the appellant is estopped and precluded from raising the said contention of violation of the principles of natural justice or that only because he had sold D some property, she cannot be. allowed to approbate and reprobate. Our attention has been drawn to a recent decision in Kashmir Singh v. Union of India & Ors. [(2008) 7 SCC 259] wherein this Court observed: "75. By reason of the Notification dated 19-10-1978, the Central. Government has not delegated its power. The 1966 Act has an extraterritorial application. It is not in dispute that no law has been enacted either by the State of Haryana or by the State of Himachal Pradesh. In absence of any law having been enacted to the contrary, the functions under the 1966 Act must be performed by sorne authority. The Central Government with the consent of the State of Haryana has merely nominated the State of Punjab tg do so. By reason thereof, it has not delegated any power. Sub-section (1) of Section 72 of the 1966 Act envisages a direction upon the Central Government. Such a direction has b~en issued by reason of the impugned notification. When a power has been conferred upon the State of Punjab by the Central Government, it exercises a statutory power. It would, therefore, not be a case where the SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.] …. t functions of the State Government must be held to be A confined to its territorial jurisdiction." The principle enunCiated therein is unexceptional but the same has n·o application in the factual matrix obtaining in this case.
40. The submission of Mr. Dwivedi that by reason of conduct of the appellant, they would be deemed to have ratified the second compromise also cannot be accepted. It is not a ratification of a contract. If ratification has to be done, all should be parties thereto. If the c.ourt had no jurisdiction to accept the c compromise in defiance of the mandatory provisions contained in Order XXlll Rule 3 of the Code of Civil Procedure, the question of invoking the doctrine of ratification would not arise. The doctrine of ratification may be applicable in the realm of private law regime but not for the purpose of amendment or modification D of a decree. Reliance has been placed by Mr. Dwivedi on Jai Narain Parasrampuria v. Pushpa Devi Saraf [(2006) 7 SCC 756], wherein it has been held : "27. The Company upon incorpt>ration has accepted the contract and communicated such acceptance to the other E party. Besides that, purchase of the property was for the purpose of the Company. Submissions of Mr Sudhir Chandra that acquisition of a property for the benefit of the Company must find place in the articles of association of the Company, is wholly misplaced. What is meant by F acceptance of the contract by the Company which is to be warranted by its incorporation, is that it is not ultra vires the purpose for which the Company had been incorporated. The distinction sought to be made by the learned counsel between Section 27 of the Specific Relief G …, Act, 1877 and Section 19 of the 1963 Act is not of much k significance. Under the 1877 Act, not only ratification and adoption of the contract was mandatory, such contract was to be warranted by the terms of the incorporation. The words "ratified and adopted" have been dropped from the main section and in Section 19 of the 1963 Act, a proviso has been added that the company has accepted the contract and communicated such acceptance to the other party of the contract. An express ratification of the contract, therefore, is no longer warranted. In view of the fact that the Company, in the suit filed against Verma, sought for a declaration that it was the owner of the property, the same, in our opinion, would amount to acceptance of the contract and com-munication thereof to the other party thereto." The dicta laid down therein itself suggests that the said principles were laid down in the context of the provisions of the Specific Relief Act. In T.V.R. Subbu Chetty's Family Charities v. Raghava Mudaliar [AIR 1961 SC 797], whereupon again Mr. Dwivedi places reliance, this Court applied the said doctrine D against a presumptive reversioner having regard to the fact and circumstances thereof. We are not concerned with such a case.
41. This brings us to the question of limitation. Article 123 of the Schedule appended to the limitation Act reads, thus : "Description of suit Period of Time from which limitation period begins to run 123. To set aside a decree Thirty days. The date of the decree passed ex pa rte or to orwherethe re-hear an appeal summons or notice decreed or heard was not duly served, exparte. when the applicant Explanation. – For had knowledge of the purpose of this the decree." article, substituted service under rule 20 of Order V of the code of Civil Procedure, 1908 (5of1908) shall not be deemed to be due service. SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.] ~. t 42. There cannot be any doubt that even if an order is A void or voidable, the same must be set aside, as has been held by this Court in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470] and Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377]. 43. It is not a case where the Court lacked inherent jurisdiction. It had jurisdiction with regard to subject matter of 8 appeal. In Rajasthan State Road Transgort Corgoration and others v. Zakir Hussain [(2005) 7 SCC 447], this Court held : "21. It is a well-settled principle of law as laid down by this c Court that if the court has no jurisdiction, the jurisdiction cannot be conferred by any order of court. This Court in the case of A.R. Antulay v. R.S. Nayak, AIR paras 40 to 42 wherein it is, inter alia, held and observed as under: '38[40]. … This Court, by its directions could not confer D jurisdiction on the High Court of Bombay to try any case which it did not possess such jurisdiction …. 39[41] . … The power to create or enlarge jurisdiction _is legislative in character …. Parliament alone can do H by E law and no court, whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal. … 40[42]. … But the superior court can always correct its own error brought to its notice either by way of petition or F ex debito justitiae. See Rubinstein's Jurisdiction and Illegality."' The limitation, however, in a case of this nature would not begin to run from the date of knowledge. In State of Punjab and Others v. Gurdev Singh [(1991) 4 SCC 1], this Court held: "10. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach H [2009) 2 S.C.R. the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the . statutory time limit expires the court cannot give the declaration sought for." 44. Mr. Jayant Bhushan would submit that the limitation would start to run from the date of knowledge. It is difficult to accept the said contention. Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In ._,_, this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. -Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the effect of the preponement of the date. 45. If the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The· compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. {[See Mohd. Noorul Hoda v. Bibi· Raifunnisa & Ors. [(1 ~96) 7 SCC 767]}. Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28.2.2002, i.e., after a gap of four years. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafter. 46. The High Court has arrived at a finding of fact that the appellant cannot be said to have acquired knowledge about the passing of the decree on 7.2.2002, stating "… If the said compromise deed dated 24.4.1998 was passed by preponi[lg the appeal fixed in July 1998 her counsel Shri Lalit Gupta could have come to know in July ·. i SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.] 1998 itself which was the original date fixed in this appeal A that this appeal was preponed and compromise decree was passed on 25.4.1998. He could have informed Smt. Sneh Gupta Respondent immediately thereafter. No reasons have been given by Shri Lalit Gupta for not deriving the knowledge of order dated 25.4. ~98 in July B 1998 when the file was originally fixed and wheTl he was supposed to appear in the Appellate Court: He has also not given the' reasons why he did not inform his party after coming to know in July 1998 that the said appeal was preponed to 25.4.1998 and was decided as c compromised." It is interesting to notice that the appellant while examining herself as AW-2, accepted that a compromise had been arrived at Panipat in April 1998, stating : "It is correct that a compromise settlement was arrived at in Panipat in April 1998 but I do not know details of it. I do not know whether in pursuance of that compromise, all the litigation were settled and withdrawn from different courts … " 47. Mr. Jayant Bhushan has placed strong reliance upon a judgment of this Court in Nahar Enterprises v. Hyderabad Allwyn Ltd. & Anr. [(2007) 9 SCC 466]. He placed reliance on the following paragraphs : "4. The respondent herein filed a suit for recovery of a sum , F of Rs.1,87,904.62 with future interest at the rate of 18.5% per annum against the appellant. It appears that in the summons sent to the appellant, 10-10-1988 was fixed for his appearance. However, as the summons had not been served, the court adjourned the matter to 2-12-1988. G Summons were s~r\ted on the appellant on 14-10'-1988, but according to him a copy of the plaint was not anne;:wd thereto. He sent a telegram on 17'-10-1988 and also a letter to the court concerned but, admittedly, the same was not responded to. Without issuing any further H c summons fixing another date for his appearance, the court fixed a date and having found the appellant absent on that date, fixed another date for ex parte hearing. On 13-12- 1988 the suit was decreed with costs. 5. An execution case was filed by the respondent herein to execute the said decree. According to the appellant, the bailiff came to serve a copy of summons on him on 2- 12-1991. The said summons having been served upon the appellant, he came to learn that ex parte decree has b~en passed. An application for setting aside the said ex parte decree was filed on 13-12-1991. By an order dated 17-1-1992 the learned Judge, City Civil Court, Hyderabad dismissed the said application inter alia opining: ( 1) (2) (3) An ex parte decree having been passed on 13-12- 1988 and an application for setting aside the ex parte · decree having been filed on 13-12-1991, the same was barred by limitation. xxx xxx xxx 12. The t~ird ground on which the learned trial Judge dismissed the application for setting aside the ex parte decree was that it was barred by limitation. The said ground in our opinion, is also without substance. The summons had not been duly served upon the appellant inasmuch as the provisions of Order 5 Rule 2 CPC or provisions of Order 9 Rule 6(1)(c) had not been complied with. In that view; the second part of Article 123, in terms whereof an . applicant would be deemed to have knowledge of passing ·of the said ex pa rte decree would be the date from which the limitation will begin to run, would be attracted in the instant case and not the first part thereof." In that case, the copy of the plaint was not annexed with ' ' +- { .' SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.] the summons. Summons was served after the date fixed in the A suit expired. The Court had in that situation under a legal obligation to serve another summons fixing another date of hearing in terms of Order V, Rule 2 of the Code of Civil Procedure. It was in the aforementioned fact situation, the Court held that the summons served was not in accordance with law B and, thus, the second part shall apply. Such is not the case here. Reliance has also been placed by Mr. Jayant Bhushan on a decision of this case in Manick Chandra Nandy v. Debdas ,I. Nandy & Ors. [(1986) 1 SCC 512). The law in that case itself was laid down in the following terms : c "11. Under Article 123 in the Schedule to the Limitation Act, 1963, the period of limitation for making an application to set aside a decree passed ex parte is thirty days from the date of the decree or when the summons or notice D was not duly served, when the applicant had knowledge of the decree. The question of knowledge of the decree by the applicant only arises where the summons or notice was not been duly served." However, in the facts of that case, it was found that E summons had not been served. In Pannalal v. Murarilal [(1967) 2 SCR 757], this Court held : "Under Article 164 of the Indian Limitation Act, 1908, the ,.,, period of limitation for an application by a defendant for an order to set aside a decree passed ex-parte was 30 F days from "the date of the decree or when the summons was not duly served, when the applicant had knowledge of the decree". The onus is on the defendant to show that the application is within time and that he had knowledge of the decree within 30 days of the application. If the G it' defendant produces some evidence to show that the application is within time, it is for the plaintiff to rebut this evidence and to establish satisfactorily that the defendant had knowledge of the decree more than 30 days before the date of the application." 48. Mr. Jayant Bhushan, then submits that as the principles of natural justice had been violated, the judgment would be a nullity. Strong reliance in this behalf has been placed on A.R. Antulay v. R.S. Nayak & Anr. [(1988) 2 SCC 602], wherein, it was stated: "55. Shri Jethmalani urged that the directions given on February 16, 1984, were not per incuriam. We are unable to accept this submission. It was manifest to the Bench that exclusive jurisdiction created under Section 7(1) of the 1952 Act read with Section 6 of the said Act, when c brought to the notice of this Court, precluded the exercise of the power under Section 407 of the Code. There was no argument, no submission and no decision on this aspect at all. There was no prayer in the appeal which was pending before this Court for such directions. Furthermore, in giving such directions, this Court did not advert to or consider the effect of Anwar Ali Sarkar case ,_ which was a binding precedent. A mistake on the part of the court shall not cause prejudice to anyone. He further added that the primary duty of every court is to adjudicate the cases arising between the parties. According to him, it is certainly open to a larger Bench to take a view different from that taken by the earlier Bench, if it was manifestly erroneous and he urged that the trial of a corrupt Chief Minister before a High Court, instead of a judge v .. F designated by the State Government was not injurious to public interest that it should be overruled or set aside. He invited us to consider two questions: (1) does the impugned order promote justice? and (2) is it technically valid? After considering these two questions, we are clearly of the opinion that the answer to both these questions is in the negative. No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right -1. itself renders the impugned action void. So also the violation of the principles of riatural justice renders the act a nullity. Four valuable rights_, it appears to us, of the SNEH GUPTA V. DEVI SARUP & ORS. [S.S. SINHA J.] …._ t appellant have been taken away by the impugned A directions: '(t) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament. (ii) The right of revision to the High Court under Section 9 of the Criminal Law Amendment Act. t (iii) The right of first appeal to the High Court under the same section. c (iv) The right to move the Supreme Court under Article 136 thereafter by way of a second appeal, if necessary."' We are concerned herein with a question of limitation. The compromise decree, as indicated hereinbefore, even if void D was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is E void, no period of limitation shall be attracted at all. In State of Rajasthan v. D.R. Laxmi [(1996) 4 SCC 445], … , · this Court held : "10. The order or action, if ultra vi res the power, becomes F void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or G waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of H c the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6." Yet again, in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470], this Court held : "18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence of the authorities who were the authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities." Yet again, in Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377], this Court held : "39. An order may be void for one and voidable for the other. An invalid order necessarily need not be non est; in a given situation it has to be declared as such. In an election petition, the High Court was not concerned with the said issue." 49. Even otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall t SNEH GUPTA V. DEVI SARUP & ORS. [S.B. SINHA J.] of the order dated 6.11.2004 in other enacted appeals. Those A applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for .condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dioak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66]; and Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52). 50. For the reasons aforementioned, there is no merit in this appeal. The same is dismissed accordingly. There shall, C however, be no order as to costs. R.P. Appeal dismissed.