SANTOSH KUMAR Vs. HACHCHU

JUDGEMENT

(1.) THE appellants-defendants have filed this Second Appeal under Section 100 of C.P.C., against the judgment and decree dated 10-05-2001, passed by the Additional District Judge, Karera, District Shivpuri in Civil Appeal No.107-A/1995, whereby affirming the judgment and decree dated 13-10-1995 passed in Civil Suit No.48- A/1994. This Second Appeal was admitted for hearing vide order dated 10-10-2001 on the following substantial question of law : "i) Whether the suit giving rise to this appeal was not maintainable in view of the Bar contained in Order 23 Rule 3-A of the Code of Civil Procedure ?

(2.) THE respondents No.1 to 3-plaintiffs filed a suit for declaration of decree dated 7-7-1980 passed in Civil Suit No.393-A/1980 as null and void and further sought a declaration that they are the owner of the suit land. THEy pleaded that the defendants filed a suit on 7- 7-1980 against the plaintiffs and on the date of institution of the aforesaid suit the plaintiff- Amarchand and defendants No.1 & 2 were minor. THE suit was instituted fraudulently and on the same day, on the basis of compromise a decree was obtained, however, the plaintiffs did not submit any compromise application in the suit, neither they appeared before the court in the proceedings of Civil Suit No.393- A/1980. THE defendants played a fraud and obtained the decree. THE plaintiffs came to know about the decree on 4-8-1985.

(3.) LEARNED Senior Counsel for the appellants has contended that the suit filed by the plaintiffs for declaring the decree and judgment passed in Civil Suit No.393-A/1980 void was not maintainable in view of the order 23 Rule 3-A of the Civil Procedure Code. In support of his contentions learned Senior Counsel relied on the following judgments : i) AIR 2007 (NOC) 841 (MP) (Bhanwarlal Bherulal & others v. Devilal Keshuram Kumawat & others); (ii) 2007 (2) MPHT 228 : (AIR 2007 MP 139) (DB) (Brajesh Kumar Awasthi and another v. State of M.P. & others)'; (iii) 2009 (3) MPLJ 168 (Tijauwa and others v. Rajmani and another); (iv) AIR 1981 Bom 357; (v) AIR 1982 Cal 12; (vi) AIR 1983 Cal 180; (vii) AIR 1985 Kar. 270; (viii) AIR 1991 Bom 185; (ix) AIR 1992 Pat 153; (x) 1995 (2) AIHC 1348 (Ker); (xi) 1995 (4) AIHC 3270 (DB); (xii) 19961 AIHC 3184 (Raj); (xiii) AIR 2003 Kar 407 (DB) ; and (xiv) AIR 2004 Raj 264 (DB).