MEHUL KUMAR PATEL Vs. RISHIKESH GUPTA

JUDGEMENT

(1.) Challenge in this appeal is to the order dtd. 21/9/2022 passed by the Second Additional District Judge, Durg, in civil suit No.18-A/ 2020 whereby the suit filed by the appellants/plaintiffs has been dismissed by invoking power under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 (for short 'the CPC') and has been non-suited.

(2.) (i) The facts of the case, as pleaded by the appellants/plaintiffs, in brief, are that the respondents are related to each other. Kanhaiyalal had three sons namely; Makhanlal, Bharatlal and Tirathlal. Makhanlal had six children i.e. three sons namely; Suryaprakash, Chandraprakash and Om Prakash and three daughters namely; Ratna Prabha, Shashi Prabha and Sneha Prabha. Respondent No.1 herein namely; Rishikesh Gupta is the son of Suryaprakash Gupta. For the sake of convenience, the genealogical tree of the descendants of Makhanlal, as impleaded in the cause title of civil suit No.7-A/2004 is as under : <IMG>JUDGEMENT_35_LAWS(CHH)11_2023_1.JPG</IMG>

(3.) Learned counsel appearing for the appellants/plaintiffs would submit that knowing fully well that the property has been sold out by Chandra Prakash and on his death his name was deleted and the property was included in the compromise. Therefore, the compromise was obtained by playing fraud on the Court as also the appellants. It is stated that the decree is effecting the right of the plaintiffs they have every right to challenge the same to get over it. In support of his contention, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of S.P. Chengalvaraya Naidu (Dead) by LRs v Jagannath (Dead) by LRs. And Others, Docid # IndLawLib/276620 and would submit that finality of litigation cannot be based on fraud. He further referring the decision rendered by the Supreme Court in the matter of Triloki Nath Singh v Anirudh Singh (Dead) through Legal Representatives and Others, (2020) 6 SCC 629 learned counsel would submit that the proposition laid down in the said matter would not be attracted in the instant case as the said decision does not consider the decree obtained by playing fraud. He would further submit that there is a distinction between 'lawfulness of compromise' and 'compromise decree obtained by fraud'. The above decision is in support of the plaintiffs and the validity of the compromise decree can be challenged even by a third party. He would also place reliance upon the decision of the Supreme Court in the matter of A.A. Gopalakrishnan v Cochin Devaswom Board and Others, Docid # IndLawLib/257735 to submit that when allegation of fraud or collusion is made then the Court is empowered to examine the validity of compromise decree and the right of plaintiffs cannot be snatched away by resorting to the provision under Order 23 Rule 3 and 3A of the CPC.