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9. Earlier there were divergent views as to the effect of a decree based on a compromise which was opposed to public policy. One view (expressed by this Court in BHIMA RAMA JADHAV v. ABDUL RASHID, AIR 1968 Mysore 184 ) was that a consent decree is not a nullity merely because the terms of compromise on the basis of which such decree is passed, contained a term opposed to law or public policy. This is on the reasoning that when a Court puts its seal of approval to a compromise between the parties, it ceases to be a contract simplicitor and becomes binding on the parties, unless it is set aside in appropriate proceedings, that a consent decree may be got set aside within the period of limitation prescribed, on grounds which may be sufficient to invalidate a contract, and that where a compromise decree passed by a Court of competent jurisdiction contains any term which is opposed to law or public policy, and if that decree has not been set aside in proper proceedings, it operates as estoppel and res judicata in a subsequent proceedings between the same parties. The contrary view was expressed by the Madras High Court (in LAKSHMANASWAMY NAIDU v. RANGAMMA, , (1903) 1LR 26 Mad 31 and Patna High Court in BALDEO JHA v. GANGAPRASAD, that a consent decree passed in terms of a compromise/agreement which is unlawful, is itself unlawful and thus void; and therefore such compromise decree is inoperative and an executing Court can entertain objections as to the validity of a compromise decree.

12. Normally, the need to challenge the compromise decree, on the ground that a term of the compromise was not lawful would arise only at the instance of any of the parties to such compromise. This is because no third party would be bound or affected by it. But where a party to a suit sues or is sued in a representative capacity, for and on behalf of others who are not parties, then such persons who were not parties will also be bound by a consent decree passed in such a suit. Consequently in such representative suits, persons who were not parties to the compromise decree may also be aggrieved by it if any term of the compromise is not lawful. To ensure that the interests of persons who are not parties, but who are nevertheless bound by the consent decree are not affected, a safety mechanism has been provided by inserting Rule 3B in Order 23.

14. The said principle will equally apply to Order 23 Rules 3, 3A and 3B CPC, in so far as consent decrees are concerned. A consent decree in a representative suit will bar a subsequent suit challenging the compromise on which such consent decree was passed only if the compromise had been entered and consent decree is passed in accordance with the relevant Rules. A bar is imposed to challenge the compromise in a separate suit because a party to a compromise is entitled to challenge the compromise as not lawful, either by filing an application in the same suit or by filing an appeal under Order 43 Rule 1A. But such remedies are available only to the parties to the suit. A person who is not a party to the suit, cannot obviously file an application in the suit, or an appeal, to challenge a compromise as being not lawful. But in a representative suit, if the Court issues notices to persons interested in the suit ( who are not parties to the suit) and hears them before deciding whether leave should be granted to the parties to the suit to enter into a compromise/ agreement, then they would also in effect become parties to the suit and will be entitled to avail the remedies that are available to a party to the suit against a compromise or the consent decree, which is not lawful. In no notice is issued to the persons interested in a representative suit and as a consequence the consent decree is void under Rule 3B, then such persons ( who are not parties) will not be entitled to file an application in the suit or file an appeal under Order 43 Rule 1A. Therefore their right to bring a separate suit seeking appropriate remedy, remains unaffected. We therefore hold that if Rule 3B is not complied with, while passing a decree on a compromise in a representative suit, any person who is affected by such compromise decree, but not a party to it may file a separate suit seeking appropriate relief in regard to such compromise decree, by way of declaration or otherwise. He may also file a suit for appropriate relief ignoring the compromise decree and such a suit will not be barred either by the principle of res judicata or estoppel.

18. The plaintiffs, who are the son, three daughters and wife of Virupaxgouda were not parties to O.S.No. 60/1994. The said suit was filed Basangouda for partition and separate possession of his 1/4th share in the suit schedule properties, against his two sons (Virupaxgouda and Veerangouda) and his wife. Neither the children of Virupaxgouda nor the son of Veerangouda, were made parties to the suit. Basangouda having died during the pendency of the suit, leaving the three defendants in that suit as his only legal heirs, in the usual course the suit ought to have been dismissed on the ground that the cause of action did not survive as the defendants were his only LRs. But, instead of the suit being dismissed, two of the defendants (widow and one son of Basangouda) choose to transpose themselves as plaintiffs and continue the suit against the other defendant (other son of Basangouda) and thereafter entered into a compromise. As the decree passed in O.S.No. 60 of 1994 against Virupaxgouda would, under the principles of Hindu Law, bind his children (appellants 1 to 4 herein) who were not parties to the suit, the suit in O.S.No. 60/1994 would be a 'representative suit' for the purposes of Order 23 Rule 3B CPC. If O.S.No. 60/1994 was a representative suit, then the mandatory provisions of sub-rules (1) and (2) of Rule 3B had to be complied. The order sheet in O.S.No. 60/1994 shows that when the parties to the said suit entered into a compromise, leave of the Court was neither sought nor given. The Court did not expressly record the grant of leave to the parties to enter into the compromise as contemplated under Sub-rule(1) Rule 3B. Further the Court did not give notice to persons interested in the suit, as required under Sub-Rule (2) of Rule 3B. As a consequence, the compromise was void and the consent decree in O.S.No. 60/1994 based on such compromise will not bind the Appellants and Rule 3A of Order 23 will not be a bar to a subsequent suit challenging the compromise decree. The Trial Court committed an error in holding that Order 23 Rule 3A barred the suit by the appellants in OS No. 176/1999.