M L VIJAYA Vs. T SRINATH

JUDGEMENT

(1.) HEARD the learned counsel for the parties. The parties are referred to their rank before the trial Court for the sake of convenience.

(2.) THE appellant was the plaintiff before the trial Court. THE suit, numbered as O.S. 135/1998, was for a declaration of her right to the suit schedule property, in terms of a preliminary decree dated 9-7-1913,passed in an earlier suit, in O.S. 24/ 1964 and the devolution of an additional l/5th share in the suit schedule property, consequent upon the death of one Rajeshwaramma, which remained unaffected notwithstanding the judgment recording a compromise and decree thereon, passed in RFA 173/ 1973,dated 11-10-1977 by a Division Bench of the High Court of Karnataka, as well as orders dated 28-2-1991 and 5-12- 1991 passed in final decree proceedings in FDP 11/1979. THE plaintiff was said to be arrayed as the fourth defendant in O.S. 24/1964 (Originally O.S. 12/1957). That was a suit for partition and separate possession of joint family property, which was the subject matter. THE plaintiff herein, who was the fourth defendant in the said suit for partition, did not contest the same. THE suit was decreed and a preliminary decree was passed as on 9-7-1973. THE plaintiff herein was held entitled to 8/56th share of the suit property therein. THE plaintiff and the first defendant were the legal representatives of the first defendant in O.S. 24/1964, he had died during the pendency of that suit, in the year 1971. THE first defendant herein, who was the second defendant in O.S. 24/1964, challenged the said preliminary decree in appeal in RFA 173/1973, before a Division Bench of this Court. During the pendency of the appeal, one of the respondents, Rajeshwaramma had died. She did not have any children. Consequently, her share of the property devolved on her legal heirs, including the plaintiff. THE plaintiff claims she was never served with any notice of the above appeal. In the year 1997, when the plaintiff had occasion to make enquiries of the suit property, she had learnt of the above appeal having been filed and a compromise petition having been filed, while indicating that the plaintiff herein, had relinquished her share in favour of the first defendant. THE plaintiff contends that she had not relinquished her share at any point of time. And that she was never served with any notice of the appeal, nor had she engaged any counsel to represent her in the said appeal and that she was not a party to the compromise petition filed in the above appeal. Pursuant to the appeal having been disposed of in terms of the compromise petition, final decree proceedings were initiated, without the plaintiff being made a party on the footing that she had relinquished her share in the suit properties therein. THE preliminary decree stood modified, in accordance with the compromise decree passed in appeal. It is in the above background that the plaintiff filed the suit in the year 1998 to claim that her rights remained unaffected by the compromise decree. THE suit was contested on the footing that the plaintiff was a party to the compromise petition as she was represented by counsel and had also filed an affidavit to state that she had relinquished her share in the suit properties. It was further urged that the suit was barred by limitation. THE trial Court found in favour of the plaintiff and decreed the suit as prayed for. An appeal having been filed against the said judgment and decree, the lower appellate Court affirmed the findings of the trial Court. However, it was held that the suit was not maintainable in view of the bar under Order XXIII, Rule 3A of the Code of Civil Procedure, 1908. It is that which is under challenge in the present appeal.

(3.) THE learned counsel for the appellant contends that in the absence of a plea, either before the trial Court or before the lower appellate Court, by the other side as to the suit being barred under Order XXIII, Rule 3A, CPC, the appellate Court ought not to have considered that aspect of the matter at all. It is contended that Order XXIII, Rule 3A would at the most operate as a bar to a suit only at the instance of a person who is a party to the compromise petition and not at the instance of a person who is not a party to the compromise petition. In the face of findings of fact, by both the Courts below, that the plaintiff was not a party at all to the compromise petitionnor was she represented by counsel, it could never be said that the same was binding on her. Hence, it cannot be said that the bar under Order XXIII, Rule 3A applied to the suit filed by the plaintiff. THE relief claimed in the suit was for a declaration that the plaintiff s share in the suit property as declared in terms of the preliminary decree remained unaffected by the compromise decree, as she was not a party thereto. Hence seeking such relief by a separate suit was not barred under the above provision. It is contended that the said provision is apparently intended to bar a suit by a person who is a party to the compromise petition seeking to set aside a compromise decree on the grounds of fraud, mistake, misrepresentation and such other contentions. It could never be a bar for a person who was not a party to the compromise petition. Reliance is placed on several authorities in support of the above contentions.