DODDAIAH Vs. HONNAPPA

JUDGEMENT

(1.) Petitioner is before this Court assailing the order dated 19.7.2014 passed in O.S. No. 44/1996 at Annexure-E to the petition. Petitioner herein was the plaintiff in O.S. 44/1996. The Suit in question had been filed seeking for judgment and decree of partition of plaintiff's one half share in the suit schedule property. In the pending Suit, the parties had entered into a compromise and a compromise petition under Order XXIII, Rule 3 was filed on 16.4.1996 which was accepted and the Suit was disposed of in terms of the compromise. Presently the petitioner herein, who was the plaintiff in the said disposed of Suit, has filed an application on 27.5.2013 under Order XXIII, Rule 1(A) r/w Section 151 of Civil Procedure Code seeking that the judgment and decree passed in the Suit on 16.4.1996 be recalled and the Suit be restored for consideration on merits. The statements made in the affidavit though is in detail by referring to the different properties and the extents therein, the ultimate reason for which the petitioner is seeking restoration of the Suit after recalling the judgment and decree is that the compromise has been entered by playing fraud on him. The Court below, however, has dismissed the application.

(2.) Learned counsel for the petitioner would contend that the Court below was not justified in dismissing the application by acting as if was considering any other IA. It is his case that when an application is made under Order XXIII, Rule 1(A) of CPC and more particularly, when allegation of fraud has been made, the same could have been appreciated only if an enquiry was held on the application and a finding had been rendered and thereafter the application was disposed of. It is in that view, learned counsel contends that the reasons assigned by the Court below is not justified.

(3.) Though the contention as put forth by the learned counsel for the petitioner would certainly sound attractive, what is necessary to be noticed in the instant case is that the very allegation of fraud is being made nearly 17 years after the compromise decree had been passed. In the instant case, what is also necessary to be noticed is that the Suit was for partition and separate possession. Though the plaintiff has sought for one half of the share, different nature of understanding had been entered into between the parties and certain items of properties had, in fact, been given to the plaintiff. If that being the position, when the compromise was given effect to, the plaintiff, in any event, was aware of his rights as on that date itself. In my opinion, this in itself is prima facie to discard the allegations made in the instant case and therefore, there was no need for an enquiry in a mechanical fashion when the facts of the case disclose on the face of it. Be that as it may, the Court below has further referred to the other litigations also which were material for consideration and thereafter has arrived at this conclusion. Therefore, in the present facts and circumstances, I find that the Court below has not committed any error.