Karnataka High Court
Hanamawwa W/O Baslingappa Biradar vs Bheemawwa @ Channabasawwa And Ors on 10 September, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2024:KHC-K:6804-DB
RFA No.200085 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.200085 OF 2016 (DEC)
BETWEEN:
HANUMAWWA
W/O BASLINGAPPA BIRADAR,
AGE: 54 YEARS,
OCC: AGRICULTURE AND H.H.WORK,
R/O: BAPPARAGI, TQ: SURAPUR,
DIST: YADGIRI.
...APPELLANT
(BY SRI AJAY KUMAR A.K., ADVOCATE)
Digitally signed AND:
by SWETA
KULKARNI
Location: HIGH 1. BHEEMAWWA @ CHANNABASAWWA
COURT OF
KARNATAKA W/O SOMAPPA RAMASWAMY,
AGE: 54 YEARS,
OCC: AGRICULTURE AND H.H.WORK,
R/O: LOTAGERI, TQ: MUDDEBIHAL,
DIST: VIJAYAPURA.
2. LAKKAPPA
S/O HULAGAPPA MANAGULI,
SINCE DECEASED BY HIS LR'S,
2(a) BASAWWA
W/O LATE LAKKAPPA MANAGULI,
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RFA No.200085 of 2016
AGE: 70 YEARS,
OCC: HOUSEHOLD,
R/O: BAPPARAGI VILLAGE,
TQ: SHORAPUR,
DIST: YADGIR.
2(b). SIDDAWWA
W/O MALLAPPA,
AGE: 45 YEARS,
OCC: HOUSEHOLD,
R/O: JOGANDBAVI VILLAGE,
TQ: SHORAPUR,
DIST: YADGIRI.
3 REVANAPPA
S/O HANAMANTH MANAGULI,
AGE: 43 YEARS,
OCC: AGRICULTURE OFFICER,
GANGAVATI,
TQ: GANGAVATI,
DIST: KOPAL.
4. NAVEENAKUMAR
S/O HANAMANTH MANAGULI
AGE: 41 YEARS,
OCC: SERVICE,
R/O: 273, 407SFS, K.H.B., COLONY,
YALAHANKA NEW TOWN,
BENGALURU - 64.
5. RAMESH
S/O HANAMANTH MANAGULI
AGE: 38 YEARS,
OCC: SERVICE,
R/O: 273, 407SFS, K.H.B., COLONY,
YALAHANKA NEW TOWN,
BENGALURU - 64.
6. PARIMALA
D/O HANAMANTH MANAGULI
AGE: 39 YEARS,
OCC: H.H.WORK,
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RFA No.200085 of 2016
R/O: 273, 407SFS, K.H.B., COLONY,
YALAHANKA NEW TOWN,
BENGALURU - 64.
7. RUKMINIDEVI
W/O HANAMANTH MANAGULI
AGE: 66 YEARS,
OCC: H.H.WORK,
R/O: 273, 407SFS, K.H.B., COLONY,
YALAHANKA NEW TOWN,
BENGALURU - 64.
8. BASALINGAPPA
S/O KAREPPA BIRADAR
AGE: 63 YEARS,
OCC: AGRICULTURE,
R/O: BAPPARAGI,
TQ: SURAPUR,
DIST: YADGIR.
9. SIDDAPPA
S/O KAREPPA BIRADAR
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O: BAPPARAGI,
TQ: SURAPUR,
DIST: YADGIR.
10. SANJEEVAPPA
S/O BASAPPA BIRADAR
AGE: 67 YEARS,
OCC: AGRICULTURE,
R/O: BAPPARAGI,
TQ: SURAPUR,
DIST: YADGIR.
11. HOLEWWA
W/O SHNBANNA PUJERI
AGE: 79 YEARS,
OCC: H.H.WORK,
R/O: ADAVI-SOMANAL,
TQ: MUDDEBIHAL,
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RFA No.200085 of 2016
DIST: VIJAYAPURA.
12. HULAGAWWA
W/O YALAGURDAPPA PATIL,
AGE: 74 YEARS,
OCC: H.H.WORK,
R/O: ADAVI-SOMANAL,
TQ: MUDDEBIHAL,
DIST: VIJAYAPURA.
...RESPONDENTS
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R1;
SRI RAJESH G. DODDAMANI, ADVOCATE FOR R2(A) & R2(B);
V/O DATED 03.08.2018 NOTICE TO R3 TO R7 ARE HELD
SUFFICIENT;
V/O DATED 06.04.2017 NOTICE TO R10 IS HELD SUFFICIENT;
NOTICE TO R8, R9, R11 AND R12 ARE SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE CODE, PRAYING TO
ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 21.04.2016 PASSED IN O.S.NO.54/2015 BY
THE SENIOR CIVIL JUDGE, MUDDEBIHAL, AND CONSEQUENTLY
DECREE THE SUIT OF THE PLAINTIFF AS PRAYED FOR, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS RFA COMING ON FOR DICTATING JUDGMENT, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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RFA No.200085 of 2016
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) The appellant-plaintiff in O.S.No.54/2015 on the file of Senior Civil Judge and JMFC, Muddebihal being aggrieved by the judgment dated 21.04.2016 by the said court has preferred this appeal.
2. Parties to this appeal are referred to as per their rank before the trial Court.
3. The plaintiff filed a suit before the trial Court to declare, "that the compromise decree passed in O.S.No.70/2007 dated 28.07.2011 as null and void and further to declare that the registered partition deed dated 11.09.2002 as valid".
4. It is the specific case of the plaintiff, that the defendant No.1 in O.S.No.54/2015 filed a suit in O.S.No.70/2007 on the file of the trial court seeking the relief of partition and separate possession of her alleged 8/28th share in the suit schedule 'A' properties. In the said -6- NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 suit, the present plaintiff in O.S.No.54/2015 was arrayed as defendant No.2. So also the defendant Nos.2 to 12 were the defendants in O.S.No.70/2007. The plaintiff has depicted the genological tree in para No.2 of the plaint. As per the case of the plaintiff, one Hulagappa had three sons by name Siddappa, Lakkappa and Hanamappa. Siddappa died on 19.11.2006 and the present defendant No.1 is the daughter of deceased Siddappa. Hanamappa also died and defendant Nos.3 to 7 are his legal heirs. The present plaintiff is the daughter of defendant No.2. Hulagapa also had four daughters by name, Revanawwa, Hanamawwa, Holewwa and Hulgawwa. Amongst these daughters, Revanawwa died and defendant Nos.8 and 9 are her legal heirs. Hanaamawwa is also no more and defendant No.10 is her legal heir.
5. It is stated that, there was a registered partition on 11.09.2002 in between plaintiff, father of defendant No.1, defendant Nos.2 to 7, mother of defendant Nos.8 and 9 and mother of defendant No.10, so -7- NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 also amongst defendant Nos.11 and 12 in respect of the schedule 'A' properties. The said partition deed is binding on the plaintiff as well as on all the defendants.
6. It is specifically stated by the plaintiff that, the said partition deed dated 11.09.2002 was acted upon. All the defendants are very much aware about the said partition deed as all of them are the parties to the same. It is alleged that, in spite of that, defendant No.1 filed a suit in O.S.No.70/2007 seeking partition. In the said suit, the suit summons to the plaintiff was not served. It was served as 'janata jari' on defendant No.9. The defendant No.9 was also not a proper person to receive the suit summons on behalf of the plaintiff. There is no cordial relationship between the plaintiff and defendant No.1. The plaintiff is not residing with defendant No.9. The said defendant No.9 never informed the plaintiff about service of suit summons in O.S.No.70/2007.
7. It is further alleged that, during the pendency of the said suit in O.S.No.70/2007, the present defendant -8- NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 No.1 who was the plaintiff got dismissed the suit against the present plaintiff i.e., defendant No.2, defendant No.6. It is alleged that, on 28.07.2011, the present defendant No.1 and defendant Nos.3 to 5 and 7 entered into compromise in respect of the schedule properties behind the back of the plaintiff. In fact, Sy.No.171 was allotted to the share of the plaintiff in the aforesaid registered partition deed along with defendant Nos.1 and 3. It is alleged that, defendants in the said suit had no legal right to enter into compromise in respect of Sy.No.171 measuring 05 acres 11 guntas of Bapparagi village of Surapur taluka. The plaintiff is not a party to the compromise petition so entered into in O.S.No.70/2007. Thus, it is contended that, the said compromise decree is not binding on the plaintiff. It has not extinguished right, title and interest of the plaintiff in Sy.No.171. The defendants in collusion with each other, making false representation and also playing fraud have entered into compromise in the said suit which is against the law and public policy. Even the said compromise is barred under -9- NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 the provision of Section 6 of the Hindu Succession Act, 1956. Thus, the plaintiff has prayed to decree the suit. It is stated that, on coming to knowledge about the said fact, the plaintiff moved an application before the same court by filing an application under Section 151 of CPC requesting to recall the compromise decree passed in O.S.No.70/2007. But the court has not entertained the application. Therefore by filing this suit, the plaintiff has sought the aforesaid reliefs against the defendants. It is also alternatively prayed by the plaintiff to direct the defendant No.3 to hand over the possession of the suit property to the plaintiff.
8. Before the trial court, suit summons were duly served upon the defendants and despite service of suit summons, defendant Nos.3 to 7 and 10 have remained absent and were placed ex parte, whereas defendant Nos.1, 2, 8, 9, 11 and 12 appeared through their counsel but have not filed any written statement.
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9. Before the learned trial court, the power of attorney holder of the plaintiff entered the witness box and examined as P.W.1 and got marked total sixteen documents as per Exs.P.1 to 16 and he has not been cross-examined by the defendants. The defendants so appeared have not led any evidence.
10. The trial court on hearing the arguments and on perusal of the records, raised four points for its consideration, answered point Nos.1 to 3 in the Negative and ultimately dismissed the suit of the plaintiff. This is how the plaintiff is before this court questioning the dismissal of her suit in O.S.No.54/2015.
11. After filing of this appeal, notice were issued to the respondents. Only respondent Nos.1, 2(a) & (b) are represented by their counsel and remaining are absent despite service of notice against them.
12. It is submitted by the learned counsel for the plaintiff that, during the pendency of this appeal, he has
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 filed an application in the shape of I.A.No.1/2024 under Order 41 Rule 27 of CPC seeking leave of the Court to produce additional documents i.e., the copy of the partition deed of the year 2002 wherein it has given right to her ancestors. He has also produced typed copy of the same.
13. It is submitted by the learned counsel for the plaintiff that, though in O.S.No.70/2007, the present plaintiff and other defendants were parties but behind the back of the plaintiff and other defendants got dismissed the said suit "as not pressed". Suppressing all the facts, the plaintiff in the said suit and the present defendant No.1 entered into compromise with the defendants and got a compromise decree. He submits that, the said compromise decree so entered into in O.S.No.70/2007 is the outcome of fraud and misrepresentation and behind the back of the plaintiff. The said compromise is against the law and public policy. Though the plaintiff had filed an application before the same Court in O.S.No.70/2007 and
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 requested the Court to recall the said compromise decree, but the said application was not entertained on the ground of jurisdiction. Therefore, he submits that without any alternative, the plaintiff has filed the present suit in O.S.No.54/2015 challenging the said compromise decree. He submits that, because of dismissal of the suit filed by the plaintiff, now the plaintiff has become remediless and her rights are jeopardised. He further submits that the partition deed so produced along with I.A.No.1/2024 categorically states with regard to rights being accrued to the plaintiff to claim partition after demise of her ancestors. He submits that, the appeal be allowed and judgment and decree so passed by the trial court be set aside.
14. As against this submission, the learned counsel for respondent No.1 Sri Harshavardhan R. Malipatil submits that, when the suit in O.S.No.70/2007 was compromised and when the plaintiff is questioning the said compromise decree, in view of strict provision of Order 23
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 Rule 3-A of CPC separate suit is not maintainable. He further submits that, though the plaintiff has filed an application under Section 151 of CPC before the said court in O.S.No.70/2007, but the said Court has dismissed the said application on account of jurisdiction. He further submits that, as the provisions of Rule 3-A of Order 23 of CPC strictly mandates that separate suit is not maintainable, rightly the learned trial court has dismissed the suit of the plaintiff. He submits that remedy of the plaintiff is somewhere else and not by filing an appeal before this Court.
15. In support of the submissions, the learned counsel for the respondents relied upon the provisions of Rule 3-A of Order 23 of CPC. The learned counsel for the respondents submits that, let the plaintiff to move an application before the Trial Court in O.S.No.70/2007 with a request to review the said order and press his application for recalling the compromise decree. He further submits that, if the suit of the plaintiff is entertained by allowing
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 this appeal, it will open further litigations of present nature and it amounts to multiplicity of the proceedings. He submits that there is no merit in this appeal and the same is liable to be dismissed.
16. We have given our anxious consideration to the arguments of both the side and perused the records.
17. Having heard the arguments, the only point that would arise for our consideration is:
"Whether the judgment and decree passed by the Trial Court suffers from any infirmity or illegality in dismissing the suit of the plaintiff?
18. Before adverting to other aspects of the matter, it is just and proper to narrate the admitted facts between both the parties. The admitted facts are that, there was a suit in O.S.No.70/2007 filed by present defendant No.1 before the learned Senior Civil Judge and JMFC, Muddebihal seeking the relief of partition and separate possession of schedule 'A' properties. In the said suit, the
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 present plaintiff and defendant Nos.2 to 12 were parties. It is also not in dispute that, the suit summons were issued to the present plaintiff and defendant Nos.2 to 12. As per the case of the plaintiff, the suit summons were not served on her and it was returned as "Janata Jari". In fact, no suit summons were duly served upon the plaintiff in the said suit. Thereafter, the present defendant No.1 filed a memo before the Trial Court stating that, he is not pressing the suit against the present plaintiff and defendant Nos.2 to 12 and the suit may be dismissed as against them. With regard to other defendants and himself, he filed a compromise petition before the Trial Court on 28.07.2011 and got the compromise decree in his favour. Now the plaintiff has challenged the said compromise decree so passed.
19. The plaintiff much relies upon the partition deed dated 11.09.2002, which was effected in the family of the plaintiff and defendants. The plaintiff has narrated the genealogical tree in the plaint stating that, one Hulagappa
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 was the propositus. As per the partition deed so produced by the plaintiff, now the present plaintiff is seeking her right in the property from Lakkappa. The said Lakkappa is no more now. When the suit was filed, Lakkappa was alive and during the pendency of the suit, he died. As per the partition deed, Lakkappa had acquired the properties and it is recited in the said partition deed that, Lakkappa had to enjoy the properties till his lifetime. After his demise, the plaintiff being his legal heir has to enjoy the properties.
20. Taking into consideration of the said fact, it is submitted by the learned counsel for the appellant/plaintiff that, in view of the death of Lakkappa now Hanamawwa i.e., the present plaintiff is entitled to succeed to the properties as per the partition deed. Suppressing the said fact of partition, the present defendant No.1 entered into compromise and thereby, the rights of the plaintiff have been jeopardized because of the said compromise decree. Now the plaintiff is challenging the said compromise
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 decree only on the ground that, it is the outcome of fraud, misrepresentation and behind her back. The said compromise is against the law and public policy.
21. So far as provisions of Order 23 of CPC is concerned, this provision speaks about compromise of a suit. There is no fetter as such to enter into compromise as per the provisions of Order 23 Rule 3 of CPC. But however, the legislature has introduced the amendment to Order 23 of CPC and inserted Rule 3-A to Order 23 of CPC by Act No.104 of 1976 w.e.f. 01.02.1977. As per this provision, "no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." Relying upon this provision, the learned counsel for the respondents submits that, this provision has been introduced to avoid the multiplicity of litigation. It is true that, Order 23 Rule 3 of CPC specifically introduced in the Civil Procedure Code to encourage amicable settlement between the parties. But law says that, the person questioning lawfulness of the compromise
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 must approach the same Court as per the provisions of Rule 3-A of Order 23 of CPC, which has recorded the compromise. Even the provisions of Order 43 Rule 1(m) of CPC is also repealed.
22. In view of the said provisions of Order 23 Rule 3-A of CPC, no appeal is maintainable against the consent decree having regard to the specific bar contained in Section 96(3) of CPC as held by the Hon'ble Apex Court in the case of R. Rajanna vs. S.R.Venkataswamy reported in (2014) 15 SCC 471. So also it is held in the said judgment that, no appeal is maintainable against the order of the Court recording the compromise and even refusing to record compromise in view of deletion of Clause (m) of Rule 1 of Order 43 of CPC. Even it is held that no independent suit can be filed for setting aside the compromise decree on the ground that, the compromise was not lawful in view of the bar contained in Rule 3-A of Order 23 of CPC. It is settled principle of law that, the consent decree operates as estoppel and is valid and
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 binding unless it is set aside by the Court, which passed the consent decree, by an order on the application filed under the proviso to Rule 3 of Order 23 of CPC. Therefore, as rightly submitted by the learned counsel for the respondents/defendants, the only remedy available to the present plaintiff is to challenge the said consent decree to avoid such a consent decree, to approach the Court which recorded the compromise and made a decree in terms of the same. The plaintiff has to establish that there was no compromise at all in her absence.
23. So far as compromise decree is concerned, it is nothing but a contract between the parties superimposed with the seal of approval of the Court. That means, the validity of the consent decree depends wholly on the validity of the agreement or compromise on which it is made. Now the plaintiff, who was the defendant in the said suit against whom the suit was dismissed, he was no more a defendant because of dismissal of the suit against him as not pressed. Now he has become stranger to the
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 said suit. That means, a right accrues to him to challenge the said consent decree by filing appropriate application before the same Court and he cannot maintain a separate suit. Even in paragraph No.16 of the judgment of the Hon'ble Apex Court in the case of Triloki Nath Singh vs. Anirudh Singh (Dead) through legal representatives and others reported in (2020) 6 SCC 629, the scope of intent of Order 23 Rules 3 and 3-A of CPC has been discussed as under:
"16. The scope of intent of Order 23 Rule 3 and Rule 3A was further considered by this Court in R. Rajanna Vs. S.R. Venkataswamy and Others2 wherein this Court held as under:
"11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3A clearly bars a suit to set aside a decree on the ground that the compromise on 2 2014(15) SCC 471 which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order 23 Rule 3A CPC.
That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3A CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court."
24. The Coordinate Bench of this Court in the case of Smt.Lakshmamma and Others vs. Sri.T.H.Ramegowda and Others reported in ILR 2015 KAR 4024 has categorically observed with regard to maintainability of a separate suit challenging the compromise decree. In the said judgment, the Coordinate Bench in paragraph No.14 has held as under:
"14. In view of the aforesaid pronouncement of the law by the Apex Court and the aforesaid statutory provisions, the law is well settled. Once the parties settle the disputes by way of a compromise by presenting an application under Order 23 Rule 3 of the Code of Civil Procedure and the Court accepts compromise and passes a decree in terms of the compromise, the decree passed by the Court attains finality. Section 96 of the Code provides
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 for appeal from original decrees. It provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. However Sub-section (3) of Section 96 provides that no appeal shall lie from a decree passed by the Court with the consent of parties. In other words, Section 96(3) of the Code prohibits an appeal challenging a decree passed by the Court with the consent of parties. Earlier, Order 43 Rule 1(m) of CPC provided that an appeal shall lie from an order under Rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction. If the party wanted to treat the order accepting the compromise itself as an order and wanted to prefer a miscellaneous appeal, Order 43 Rule 1 (m) of the Code provided a miscellaneous appeal. However, clause (m) was omitted by Act 104 of 1976 with effect from 01.02.1977. Now such a course is not open to him. No miscellaneous appeal lies against the order accepting or rejecting the compromise by the Trial Court. Order XXIII Rule 3A which was inserted by Act 104/1976 which came into effect from 01.02.1977 provides that
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 no suit shall lie to set-aside a decree on the ground that the compromise on which the decree is passed was not lawful. In view of the aforesaid statutory provisions, a regular appeal, a miscellaneous appeal and a separate suit is not maintainable to challenge a compromise decree. Therefore, the only remedy available to an aggrieved person, who wants to challenge the compromise decree is to approach the very same Court, which passed the compromise decree. He has to file application in the suit, in which the compromise was recorded and a decree is passed on such compromise. Thus, after a compromise has been recorded, the Court concerned can entertain an application under Section 151 of the Code questioning the legality or validity of the compromise. If such an application is filed, then the Court which passed the decree shall consider the said application after notice to either side. Then the said Court has to decide the question as to whether the compromise entered into and the decree passed thereon is lawful or valid. It can also decide whether such compromise is void or voidable. If the agreement or compromise itself is fraudulent, then it shall be deemed to be void
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 within the meaning of the explanation to the proviso to Rule 3 and as such not lawful.
25. Thus, as observed in the foregoing paragraph, the only remedy, which is available to the plaintiff is to seek setting aside the compromise decree by approaching the Court, which has passed the said decree.
26. In view of the law laid down by the Hon'ble Apex Court and this Court in the said judgments so also amendment to CPC, separate suit is not maintainable. That means, Rule 3-A of Order 23 of CPC creates a bar to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The learned Trial Court has rightly dismissed the suit of the plaintiff even after recording the evidence of the plaintiff. Now only remedy which is available to the plaintiff is to approach the same Court seeking review of the said order for setting aside the compromise decree. The liberty is very much available to the plaintiff. This liberty is to be given to the plaintiff. Though the said application was
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 dismissed long back, in view of the pendency of the suit of the plaintiff and also pendency of this appeal before this Court, the limitation has to be saved and the Trial Court is requested not to raise any objections with regard to the limitation. The plaintiff is at liberty to seek appropriate relief and the said application has to be disposed by the Trial Court on merits in accordance with law. With these observations, we hold that, the present appeal lacks merit and is liable to be dismissed. Resultantly, we proceed to pass the following:
ORDER
a) The appeal is dismissed.
b) However, the plaintiff is at liberty to move the Trial Court in O.S.No.70/2007 and seek to review of the order passed on application filed under Section 151 of CPC.
c) The Trial Court is requested not to raise any objections in view of the pendency of
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NC: 2024:KHC-K:6804-DB RFA No.200085 of 2016 the suit as well as the appeal before this Court.
d) All the rights of the parties are kept open.
e) The documents produced along with I.A.1/2024 are taken on record.
f) Registry to send back the Trial Court records along with copy of this judgment forthwith.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE BL/Srt List No.: 1 Sl No.: 44