HASHAMSAHEB Vs. ABDULWAHAB

JUDGEMENT

(1.) Petitioner is seeking for quashing of the judgment and decree passed by the II Addl. Civil Judge and JMFC, Belgaum, in O.S. No. 449/2012 dated 27.03.2012 whereunder compromise petition filed by the parties to the lis under Order XXIII, Rule 3 read with Section 151 of CPC came to be accepted and decree has been drawn as per Annexure-C. The contention of the learned Counsel for the petitioner Sri. Santosh B. Rawoot, is petitioner has not executed any agreement of sale and by fabricating the signature of the petitioner on the alleged agreement of sale, compromise petition came to be filed and defendant is an aged person and he never attended the Court and he has never executed a power of attorney in favour of anybody and plaintiff colluding with each other and to grab the joint family property, compromise petition has been set up and no opportunity was given to the petitioner at the time of passing compromise decree and hence same is liable to be set aside.

(2.) By virtue of introduction of Rule 3A to Order XXIII, a bar has been created to file the suit challenging the recording of the compromise as not lawful. Under Order XLIII, Rule 1(m) prior to the amendment, aggrieved party had a right of challenging the same by way of appeal and same had been omitted by Amendment Act 104/1976. However, simultaneously Rule 1A came to be inserted to Order, XLIII by Act 104/ 1976 with effect from 01.02.1977 which provides for challenging non-appealable orders in appeal against such decrees. Said provision reads as under:

(3.) In view of there being a clear bar under Rule 3 of Order XXIII to file a suit and there being no bar to challenge the said decree in an appeal, the present writ petition would not be maintainable. This view taken by me is fortified by judgment of the Apex Court in the case of Banwari Lal Vs. Smt. Chando Devi (through LR) and Another, 1993 AIR(SC) 1139 whereunder it has been held as under: