S. KHAJA HUSSAIN Vs. NASIR BASHA AND OTHERS

JUDGEMENT

(1.) This is a revision challenging the order of the Additional District Judge, Cuddapah, in I.A. No. 160 of 1961 in O.S. No. 3 of 1955 that the said petition (I.A. No. 160 of 1961) is maintainable and could be inquired into.

(2.) The relevant facts are these: O.S. 3 of 1955 was filed for partition of the properties of one late Bahadur Saheb. The plaintiff in the suit was his widow. Defendants 1 and 2 in the suit were the minor sons of the said Bahadur Saheb, represented by their maternal uncle as their guardian. 3rd defendant was the said Bahadur Saheb's brother. 4th defendant was a daughter of Bahadur of Bahadur Saheb by another wife. The guardian had obtained leave of Court to enter into the compromise. The suit was compromised on 2-3-1957. A preliminary decree was passed in terms of the compromise. It is represented that a final decree is yet to be passed in respect of certain lands. It is at this stage that the 1st defendant filed an application under section 151 C.P.C. I.A. No. 160 of 1961, the maintainability of which is now in question, alleging that the 3rd defendant had played fraud on the court by laying a claim to a half share of the properties and had obtained such share in the compromise, while in fact under the agreement entered into by him on 16-1-1953 with the late Bahadur Saheb, his brother, he had agreed to take certain properties and cash in lieu of his share in all the properties. It was alleged that the said agreement was exclusively within the knowledge of the 3rd defendant but that was suppressed from the court and that the compromise entered into was not beneficial.

(3.) The petition was opposed inter alia on the question of maintainability, further to repudiation of the allegations. On the facts it was pleaded that the agreement between himself and his late brother Bhadur Saheb was true but was not acted upon. With regard to the maintainability of the petition, it was pleaded that the remedy was to file a regular suit and not to invoke the inherent powers of the court under section 151 C.P.C.