Patna High Court - Orders
Smt.Prabhawati Sinha vs Heera Rai & Ors on 21 April, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.1839 of 2006
SMT.PRABHAWATI SINHA
Versus
HEERA RAI & ORS.
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4. 21.04.2009Heard learned counsel for the petitioner.
By the impugned order, the learned court below has rejected the petition of the defendant under Order 7 Rule 11 (d) of the Code of Civil Procedure filed for dismissing the suit on the ground that the suit was barred under Order 23 Rule 3 (A) of the C.P.C.
Learned counsel for the petitioner submits that since the suit was filed for setting aside the compromise decree on the ground of fraud and remedy available to the plaintiff was by way of filing a miscellaneous case in that very court which passed the compromise decree. Reliance has been placed by the learned counsel for the petitioner on the order of this Court reported in [2005 (1) PLJR 1] in the case of Jaimangal Kumar and anr. Versus Dinesh Yadav and anr. wherein it has been held that even in cases of alleged fraud committed in regard to the compromise decree, the remedy is 2 available only by way of filing a miscellaneous case before the same very court and not in other courts.
Issue notice to opposite parties by registered cover with A/D as well as by ordinary process for which requisite etc. shall be filed within one week, failing which this application shall stand rejected without further reference to a Bench.
Notices by ordinary process shall be served on the opposite parties or their learned counsel appearing in the suit through the office of the trial court and to that effect, a report shall be submitted to this Court within two weeks.
During the pendency of this revision application, further proceeding of Title Suit No.377 of 2005 pending in the court of Subordinate Judge VII, Patna shall remain stayed.
The opposite parties shall be at liberty to mention this matter for its early hearing after their appearance in the case.
(J. N. Singh, J.) B.T.