CHILAMKURTHI SUBBULU Vs. KATRAGADDA RADHABAI

JUDGEMENT

(1.) This appeal is filed by the 4th defendant in O.S.No.64 of 1980 on the file of the Subordinate Judge at Machilipatnam.

(2.) One Katragadda Gandhi filed O.S. No.64 of 1980 on the file of Subordinate Judge, Machilipatnam, for the relief of partition and the said Gandhi died and Katragadda Radha Bai and Katragadda Tulasi, wife and daughter were added as legal representatives of the 1st plaintiff as per orders in I.A.No.181 of 1983 dated 22-4-1983. The said plaintiffs 2 and 3 in O.S.No.64 of 1980 are respondents 1 and 2 in this appeal. Defendant No.4 in the said suit is the appellant. Defendants 3 and 4 were added as legal representatives of the 1st defendant as per orders in I.A.No.1801 of 1980 dated 19-1-1982 and the 5th defendant was added as per orders in LA. No.350 of 1982 dated 17-9-1982 and the 6th defendant was added as per orders in I.A.No.958 of 1986 dated 5-8-1986. The 4th defendant-appellant in the present appeal also had filed a written statement. When she came to know, that the other parties were contemplating to have a compromise recorded between themselves, the 4th defendant had filed I.A.No.51 of 1987 in O.S.No.64 of 1980 on the file of the Subordinate Judge, Machilipatnam, requesting the Court to transpose her as plaintiff in the suit so as to enable her to contest the matter effectually and settle all the questions involved in the suit. The said application was opposed and ultimately, the same was dismissed by an order dated 24-2-1987 and the said order became final. Subsequent thereto, as revealed from the record, a compromise decree was passed on 24-3-1987 recording the compromise in between plaintiffs 2 and 3 and defendants 2, 3, 5, and 6, and dismissing the suit as against the 4th defendant-appellant herein. Aggrieved by the said judgment and decree, the 4th defendant in the suit had preferred the present appeal

(3.) Mr. Kowturu Vinaya Kumar, learned Counsel for the appellant, had submitted that the compromise decree passed by the Court below ignoring the claim of the appellant-4th defendant is totally unsustainable in law. The learned Counsel also had contended that when a sharer had filed an application to transpose her as the plaintiff to further prosecute the litigation, dismissing the said application also is not sustainable. The learned Counsel also had drawn my attention to the grounds of appeal i.e. ground No.2 and had contended that by virtue of Section 105 of the Code of Civil Procedure (for short 'the Code'), he is entitled to question the order made in I.A.No.51 of 1987 also in this appeal. The learned Counsel also had drawn my attention to the written statement filed by the appellant- 4th defendant, especially, paragraphs 6, 7, and 8 of the written statement and had contended that though specifically the wills dated 23-8-1979 and 9-10-1980 had not been denied, there is a denial of all the documents saying that they are not genuine and they are all spurious documents. The learned Counsel also had pointed out that in paragraph 7 of the written statement, there is a specific claim about the share of the 4th defendant-appellant, to which ultimately she is entitled to. The learned Counsel had further contended that Clause 13 of the decree passed by the Court below "that the suit against the 4th defendant be and here by is dismissed" will definitely prejudice the rights of the appellant-4th defendant and hence recording of such compromise, at any rate, cannot be said to be lawful within the meaning of Order 23, Rule 3 of the Code.