MAVULLATHIL ANANDAN Vs. KANNAMPOLIYAN NANU

JUDGEMENT

(1.) A compromise petition was filed signed by plaintiff, defendants, except one and their counsel. A compromise decree was passed in terms of the compromise. Whether the defendants, who did not sign the compromise petition, is entitled to file an application to set aside the compromise decree on the ground that he is not a signatory to the compromise alleging fraud Whether the signature of the counsel for the party in a compromise petition is sufficient and whether it is mandatory that all the parties to sign the compromise petition There the questions to be settled in the revision petition,

(2.) Respondents 1 and 2 are the plaintiffs. Petitioner and his brothers, respondents 3 and 4, are defendants. O.S. 357/94 was filed before Sub-Court, Thalassery for fixation of boundaries. After Commissioner submitted a report and plan, objection was filed to the report. Thereafter a settlement was arrived at between the parties. LA. 814/ 01 was filed on 7-3-2001. In that compromise petition signed by first plaintiff and defendants 3 and 4 and counsel appearing for plaintiffs and defendants, it was stated that the dispute was settled between the parties accepting the report and plan submitted by the Commissioner in the suit. A decree in terms of the compromise fixing the boundaries as demarcated by the Commissioner in the plan was sought. Accepting the compromise, learned Sub-Judge passed a decree in terms of the compromise on 7-3-2001. Thereafter decree holders filed execution petition, to execute the compromise decree. While so, first defendant, the petitioner herein filed I.A. 886/82, to set aside the compromise decree contending that he was not a party to the compromise and he was not aware of the compromise and during January 2001 he was totally bed ridden and hence could not contact his counsel and his brothers the other defendants used to contact the counsel and give instructions and he received notice in E.P. 32/02 and then with the help of the neighbour he went through the notice and to his surprise found out that suit was decreed. When contacted his brothers disclosed that suit was decreed on the basis of a compromise and a petition filed before the Court. It was alleged that it was all done behind his back. It was also alleged that it seems that "other defendants had colluded with the plaintiffs and played fraud on the petitioner" and therefore compromise decree is not valid and binding on him and therefore it is to be set aside. Petition was filed, purporting to be under Order XXIII, Rule 3 of Code of Civil Procedure, Respondents 1 and 2 filed objections to the petition. Learned Sub-Judge under the impugned order dated 10-12-2002, dismissed the application. It is challenged in this revision petition filed under Section 115 of the Code of Civil Procedure, (hereinafter referred to as the Code).

(3.) Learned Counsel appearing for petitioner and respondents 1 and 2 were heard.