NITYANANDA PANIGRAHI Vs. LAKHMIPRIYA PANIGRAHI

JUDGEMENT

(1.) THESE two matters have been filed by the plaintiff against the same order dated 31st July, 1958 passed by the Additional Subordinate judge of Berhampur exercising jurisdiction under Section 151 of the Civil Procedure Code in restoring the original suit to file for trial in accordance with law. The plaintiff, who is the appellant in the Miscellaneous Appeal and petitioner in the Civil Revision, had filed the suit against four defendants. Defendant No. 1 is the widow of Magata panigrahi. Defendant No. 2 alleges himself to be the adopted son of Magata. The plaintiff is the brother of Magata. Defendants 3 and 4 are the subsequent aliences from defendants 1 and 2. The suit was brought on the assertion that defendant no. 2 was never adopted by Magata and further to set aside the alienations on the ground that they were not for legal necessity.

(2.) THE suit was originally filed at Berhampur but it was transferred to Aska and on 16th July 1956 a compromise petition was filed which purports to have been on behalf of the plaintiff, defendant No. 1 and defendant No. 2. On the basis of this compromise a decree was passed by the Court on 28th July 1956. On 29th september 1956, however, the petition out of which the present Miscellaneous appeal and the Civil Revision arise was filed by defendant No. 1, the widow of Magata, for setting aside the compromise and, restoring the suit to file for trial in accordance with law on the ground that she was never a party to the compromise and that fraud, had been played upon her, the purdanashin widow defendant No.

(3.) THE learned Subordinate Judge on a discussion of the evidence on record and the circumstances transpiring has thougt fit to exercise jurisdiction under Section 151, C. P. C. in setting aside the compromise and restoring the suit to file. Against this order both the Misc. appeal and the Civil Revision have been filed. Manifestly when the order impugned is one under Section 151, C. P. C. no miscellaneous appeal lies and therefore it is dismissed. I am, therefore, to consider how far the civil Revision deserves being allowed in favour of the present plaintiff-petitioner.