LAWS(ORI)-2011-10-20

HARINARAYAN DAS Vs. JAMUNA DAS

Decided On October 25, 2011
Harinarayan Das Appellant
V/S
JAMUNA DAS Respondents

JUDGEMENT

(1.) THE petitioner in this writ application, has called in question the order dated 05.11.2005 passed by the learned Civil Judge (Junior Division), Balasore in Misc. Case No.121 of 1997, which was filed by the petitioner to set aside/recall the compromise decree passed in T.S. No.695 of 1995.

(2.) THE facts reveal that the opposite party No.1 -Smt. Jamuna Das, who is the mother of the petitioner, filed T.S. No.695 of 1995 seeking a decree for partition alleging, inter alia, that the suit schedule 'Kha property is the joint family property of the plaintiff and defendants 1 to 4. Lot Nos.2 and 3, which are agriculture properties were also inherited by the plaintiff and defendants 1 to 4 and during the major settlement, the suit land was jointly recorded in their name. On a compromise petition being filed on 01.03.1997 in presence of the plaintiff and defendants 3 and 4 and in presence of the counsel holding special power on behalf of the defendants 1 and 2, the said compromise was admitted and a decree was passed making the terms of compromise a part of the said decree. While the matter stood thus, the petitioner, who was defendant No.2 in the said suit, filed an application under Order - 23, Rule - 3 C.P.C. to set aside the compromise decree dated 01.03.1997 passed in the suit, on the ground of fraud and misrepresentation.

(3.) THE plaintiff filed an objection to the Misc. Case petition, wherein, while stating that the petition is not maintainable, she stated that she did not file T.S. No.695 of 1995 or any other suit as plaintiff. She also stated that the property is still joint and has not been divided between the co -sharers and she has no knowledge about filing of the partition suit nor the compromise entered into.