DURGA PRASAD TANDON Vs. GAUR BRAHMAN SABHA NAINITAL

JUDGEMENT

(1.) This is plaintiffs second appeal against the judgment and decree passed by the trial court dismissing the Original Suit No. 155 of 1989 and the decree of the lower appellate court affirming the judgment and decree of the trial court.

(2.) In short, the facts are that the Small Cause Suit No. 18 of 1987 which was filed against the present appellants by the Gaur Brahman Sabha, Kashipur-respondent No. 1 was decreed in terms of compromise dated 24.7.1987. The present plaintiffs/appellants filed Suit No. 155 of 1989 for cancellation of the decree dated 24.7.1987 in the said suit on the ground that the compromise was obtained by coercion, fraud, etc. The trial court dismissed the suit mainly on the ground that the suit was not maintainable in view of the provisions of Order XXIII, Rule 3A of the Code of. Civil Procedure. The plaintiffs appellants preferred an appeal. The lower appellate court re-appraised the evidence and recorded a finding of fact that the compromise decree was not obtained by playing fraud or by exercise of undue coercion upon the plaintiffs. The lower appellate court also held that the suit was not maintainable. The lower appellate court consequently dismissed the appeal.

(3.) Sri Murli Dhar, learned senior counsel appearing for the appellants has been heard at length at the admission stage. He has submitted that there are conflicting decisions whether in such cases the provisions of Rule 3A of Order XXIII. C.P.C, were attracted or not. He has also submitted that the trial court had not recorded the finding on the question whether the compromise was obtained by playing fraud and exercising coercion. The lower appellate court should have, therefore, remanded this matter to the trial court,