PRAHALAD SRINIVAS DEVALE Vs. MODEL EDUCATION

JUDGEMENT

(1.) RESPONDENT No.15 has filed the above application for recalling of the order dated 20.2.2008 made in the above case whereby the appeal was compromised by appellant Nos. 1 and 3 and some of the respondents and to restore the appeal for disposal according to law.

(2.) THIS appeal arises out of the judgment and decree in O.S.No.1/2001 dated 20.12.2003 passed by the Principal District Judge, Dharwad. The first appellant was plaintiff No. 1 and the third appellant was plaintiffNo.8 in the said suit. Appellant Nos.2 and 4 are deleted since they are no more. The suit filed by the plaintiffs was a representative suit. Some of the respondents were defendants in the said suit and the other respondents were the plaintiffs. The court below by the impugned judgment and decree has framed a scheme known as "Scheme for Management of Model Education Board", Navalgund, Dharwad District. The applicant in 1.A.No.I/2008 was plaintiff No.9 in the suit and respondent No.15 in the appeal. He was deleted from the array of the parties by the order dated 20.2.2008.

(3.) ON the other hand, Sri Krishna S. Dixit, learned Counsel appearing for respondent Nos.2 and 7 contends that the suit in question was filed by the plaintiffs after taking permission from the Charity Commissioner under Section 51 of the Act. Having regard to sub-Section (1) of Section 52 of the Act, the provisions of Sections 92 and 93 of the CPC do not apply to a Public Trust. Explanation to Order 23 Rule 3-B of the CPC explains a 'representative suit' as a suit under Sections 91 and 92 of the CPC or a suit under Order 8 Rule 1 or a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family, or any other suit in which the decree passed, may by virtue of the provisions of the CPC or any other law for the time being in force, bind any person who is not named as party to the suit. Though the suit in question was a representative suit, it does not come within the explanation of Order 23 Rule 3-B of the CPC. Therefore, taking permission of the Court to compromise the suit under sub-Rule (1) of Order 23 Rule 3-B does not arise. In the circumstances, the compromise decree entered into between the parties is valid. Sri C.S. Patil, learned Counsel for the appellants has supported the stand taken by Sri Krishna S. Dixit.