SURAJ KUMARI Vs. DISTRICT JUDGE MIRZAPUR

JUDGEMENT

(1.) By means of the present writ petition under Art.226 of the Constitution of India, the petitioner has challenged the orders passed by the Munsif Magistrate, Mirzapur, dated 1/09/1989, rejecting the petitioner's application under O.9. R.13 read with S.151 of the Code of Civil Procedure for setting aside ex parte decree passed in Original. Suit No.3 of 1985 and also the order of the District Judge, Mirzapur, dismissing the petitioner's Appeal No.104 of 1989, Smt. Suraj Kumari v. Para Devi, vide its order dated 28/11/1989. The said appeal was directed against the order of Munsif Magistrate, Mirzapur, dated 1/09/1989, referred to above. The main contention of the petitioner's counsel, in the present petition is that both the Courts below have committed manifest error of law in taking a view that the application for setting aside the compromise decree dated 22/05/1985 at the instance of the petitioner who was not a party in Original suit No. 3 of 1985, was not maintainable under O.9 R.11 read with S.151 of the Code of Civil Procedure.

(2.) . At the very out set it may be stated that the Courts below have field that in the circumstances of the case the appropriate remedy for the petitioner is by way of filing a regular suit in Civil Court, which the petitioner has already filed and is pending in the court of Munsif Magistrate, Mirzapur.

(3.) . The controversy in the writ petition is very short as to whether in the circumstances of the present case the petitioner could have sought relief, for setting aside the compromise decree entered into between Nagarmal (petitioner's husband) and Smt. Para Devi, in respect of the shop in dispute, of which the petitioner claimed the ownership on the ground that the compromise decree has been obtained by practising fraud on the court, in an application under O.9, R.13 read with S.151 of the Code of Civil Procedure or the Courts below committed no error in holding that on the facts of the present case the proper remedy for the petitioner is by way of filing a regular suit and which remedy the petitioner has already availed.