RAGI SHAKUNTALA Vs. CHANDRAPALKALA SADANANDAM

JUDGEMENT

(1.) This petition is filed by a third party to the appeal to amend the compromise decree dated 24-7-2001 passed in A.S.No. 396/95 by deleting paragraph No. 4 therefrom.

(2.) Aggrieved by the decree and judgment in O.S.No. 47/1991 on the file of the Subordinate Judge, Karimnagar dated 11-12-1991, a suit filed for partition of the plaint schedule property in two equal shares, 1st respondent filed A.S.No. 386 of 1995 against the 2nd respondent. During the pendency of the said appeal both respondents 1 and 2 filed CMP No.14375/2001 under Rule 3 of Order 23 CPC to record the compromise entered into by them. On 24-7-2001, the said compromise was recorded by this Court and appeal was disposed of in terms of the said compromise. Long prior to 24-7-2001 petitioner filed C.M.P.NO. 718/97 to implead her as party to the appeal, alleging that she purchased a plot admeasuring 1018 sq.yards in Plot No. 37 in S.No. 1297 and 1298 of Christian Colony of Karimnagar for valid consideration under a registered sale deed dated 16-7-1975 executed by the appellant (1st respondent) in her favour and has been enjoying the same from the time of purchase by paying taxes to the municipality. The present petition is filed by the petitioner alleging that respondents 1 and 2, with a view to jeopardize her rights, collusively and without bringing to the notice of the Court about the pendency of CMP No.718/97 filed by her, got the compromise recorded. It is her contention that she is obliged to file this petition since respondents 1 and 2 are utilizing the averments in para 4 of the compromise decree to defeat her rights, and so para 4 of the compromise decree needs to be deleted.

(3.) Since the petition was filed after giving notice to the counsel for respondents, the same was adjourned from 11-3-2003 to 18-3-2003 for counters of respondents. Since respondents did not file their counters on 18-3-2003, the petition was posted to 27-3-2003 for hearing. Today, when the matter is taken up for hearing, counter-affidavit of 2nd respondent is filed, without seeking leave of the Court to permit him to file his counter-affidavit. Needless to say that in such circumstances counter affidavit of 2nd respondent cannot be taken into consideration. But ignoring the technicality of the 2nd respondent not filing a petition seeking permission to file his counter affidavit, I would take into consideration the counter affidavit of 2nd respondent for deciding this petition.