BABULAL Vs. CHATURIYA

JUDGEMENT

(1.) Plaintiff-respondents 1 to 3 herein filed Civil Suit No. 52-A of 1980 impleading defendants, petitioners herein for declaration of their title and confirmation of possession over the land, details whereof have been given in the plaint. Said suit was decreed by the trial Court purportedly on the basis of compromise entered between the plaintiffs and the defendants.

(2.) After passing of the compromise decree plaintiff No. 1 filed application under Section 151 of the Code of Civil Procedure and prayed for setting aside the compromise decree on the allegation that the same is unlawful. By the impugned order dated 17-10-1989 the trial Court held that the application filed by plaintiff No. 1 to set-aside the compromise, decree under Section 151 of the Civil Procedure Code is maintainable, and fixed the case for recording of evidence. Defendants aggrieved by the same preferred revision and the revisional Court by order dated 11-2-1991 dismissed the revision application.

(3.) Mr. R.S. Tiwari appears on behalf of the petitioners where as respondents are represented by Shri A.P. Singh. Mr. Tiwari appearing on behalf of the petitioner submits that in view of the provisions of Order 23 Rule 3-A of the Code of Civil Procedure no fresh suit lies and the only remedy in the circumstances which was available to plaintiff No. 1 was to file appeal under Order 43, Rule 1-A of the Code of Civil Procedure. In support of his submission he has placed reliance on a Division Bench Judgment of this Court in the case of Thakur Prasad v. Bhagwandas1. He has drawn my attention to the following passage from paragraph 10 of the judgment which reads as follows:-