JAGJIWAN RAI Vs. HARI KUNWAR RAI

JUDGEMENT

(1.) IN this appeal by the Plaintiffs two questions of law have been raised. Firstly, whether Article 91 or Article 95 of the Limitation Act, 1908 will apply and, secondly, whether a "decree" is an "instrument" within the meaning of Article 91 of the Limitation Act, 1908.

(2.) PLAINTIFFS filed a suit for cancellation of the compromise decree passed in Suit No. 30 of 1955, Hari Kunwar Rai and Ors. v. Lochan Rai and Ors. of the Court of City Munsif, Azamgarh in respect of matters which were not covered by that suit. Plaintiffs' case was that the compromise was the result of fraud and in any event since it involved matters extraneous to the suit, it could have no effect on the pa ties. Moreover, the compromise signed by Sri Ram Singar Rai was beyond his competence as he could not act in respect of the properties other than those involved in the suit. The defence was a denial of the plaint allegations and an assertion that the compromise was validly arrived at and was binding on the parties. It settled the disputes between the parties and Shri Ram Singar Rai was competent to verify the compromise on behalf of the Plaintiffs. The trial court framed two issues and negatived the plea of the Plaintiffs both on the question of fraud and the validity of the compromise decree. Plaintiffs suit was dismissed. On appeal the lower appellate court held that the compromise decree was neither null nor void on the grounds taken in the plaint. A fresh point was taken as to whether the suit was within time. The lower appellate court framed an issue on the point and remitted it to the trial court. The trial court by its decision dated 30th of July 1965 held that the Plaintiffs' suit was barred by time. This finding of the trial court was affirmed by the lower appellate court. The appeal was dismissed.

(3.) LEARNED Counsel for the Appellants contended that Article 91 of the Limitation Act, 1908 (hereinafter referred to as the 'Act') would have no application and Article 95 would be applicable. In the alternative it was argued that even if Article 91 applied, the starting point would be when the Plaintiff's Knew of the compromise decree. It was contended that the Plaintiffs had knowledge of the compromise decree in October, 1961 and the suit filed on the 10th of March, 1962 was well within time. The contention of the learned Counsel for the Respondents was that Article 95 had no application for it applied only to a decree obtained by fraud or for other relief on the ground of fraud. The finding of the court below is that the compromise decree was not obtained by fraud. Consequently, Article 95 of the Act would have no application. The view taken by the court below in this regard is perfectly correct.