KISHORI MUKHI Vs. DHANESWAR SAHU

JUDGEMENT

(1.) THE plaintiff is the petitioner, in this Civil Revision, directed against an order of the learned Munsif, Kendrapara, in T. S. No. 111/56 and Misc. case No. 166/59, whereby he, while dismissing an application for setting aside a compromise petition on the ground of fraud, allowed a decree in terms of the said compromise, in the circumstances hereinafter stated.

(2.) THE matter arose thus; The plaintiff filed a suit being T. S. No. 111 of 1956 for declaration of title and confirmation of possession regarding Ka schedule land and declaration of right of way over Kha sch. lands and also for an injunction restraining the defendants 1, 2 and 3 from obstructing the plaintiff's right of possession. There were eight defendants in the suit of whom defendant No. 1 alone appeared. There was, however, no written statement filed by any of the defendants. On December 6, 1958 a compromise is stated to have been brought about among the parties at the intervention of the Bhadraloks of the village. It is, however, alleged that the terms of the compromise filed in court were otherwise than as filed in the village. The plaintiff filed an application for setting aside the compromise petition, on the ground of fraud under Section 151, Civil Procedure code, Indeed, there were two applications before the trial court, namely, one for recording the compromise under Order 23, Rule 3, Civil Procedure Code and the other for setting aside the compromise petition, on the ground of fraud as aforesaid. The learned trial Court dismissed the application for setting aside the compromise petition on the ground of fraud but allowed the compromise to be recorded under Order 23, Rule 3 and passed a decree in accordance with the terms of the compromise. In the judgment the learned trial court however, found that, as it was a case of fraud upon the parties, the application for setting aside the compromise, on the ground of fraud, is not maintainable; that it can only be agitated by way of a suit for setting aside the compromise on the ground of alleged fraud. The learned trial Court, however, went into the merits of the case and disbelieved the case of the plaintiff regarding the alleged fraud as pleaded in his petition for setting aside the compromise petition. The revision is directed against the Order of the learned trial Court as aforesaid.

(3.) THE point,--urged on behalf of the plaintiff petitioner,-- is that the trial court should not have gone into the merits and indeed he should have left it open to be decided in a separate suit to be filed by the plaintiff for setting aside the compromise on the ground of alleged fraud. It was, further, contended that the learned trial Court, in exercise of his jurisdiction, acted illegally and with material irregularity, in going into the merits of the question, regarding the alleged fraud while dismissing the application as not maintainable because it could only be agitated in a separate suit