CHANDRAMANI DAS Vs. BHASKAR CHANDRA ROY AND ORS.

JUDGEMENT

(1.) THIS is an appeal under Or. 43, R.1 (d) of the Code of Civil Procedure against an order passed by the Second Subordinate Judge, Cuttack in an application under Or. 9, Rule 13 of the Code of Civil Procedure. The present appellant is defendant No. 6 in Title Suit No. 64 of 1978. The said suit was for partition. On 8 -11 - 1978, this defendant (the present appellant) was set ex parte. The suit was thereafter taken up for hearing. At the hearing, the suit was decreed ex parte so far as this defendant is concerned. It further appears that after the preliminary decree dated 15 -9 -1980 was passed pursuant to the judgment dated 9 -8 -1930, a final decree proceeding was" initiated which ended in a compromise decree. The compromise petition purports to contain signature of this defendant and an Advocate, who appeared on her behalf. The advocate admitted the terms and conditions of 'ha compromise in Court. The final decree was passed on the basis of that compromise petition. The present appellant filed an application under Or. 9, R.13 CPC alleging that on 25 -11 -1988 she got information from defendant No. 7 that the suit has been decreed ex parte, so far she is concerned and thereafter she sent her, son on 26 -11 -1988 to enquire about the same. After the record was inspected on 29 -11 -88, she came to know that the summons in the suit had been suppressed and there has been serious irregularities in the matter of service of summons on her. She also asserted that she does not know how to sign her name and had never engaged any Advocate for any purpose in the said suit. She denied to have signed the compromise petition and alleged that her purported signatures in the Vakalatnama as well as in the compromise petition were manipulated to deprive her from her lawful right. Some of the present respondents filed objection to the said application denying her allegations. An application was filed by one of the opposite parties in the said Misc. Case challenging the maintainability of the proceeding. The learned trial Court relying on a decision reported in, AIR 1961 Rajasthan 29 (Assoomal v. Tekumal and Anr.) came to hold that the Misc. Case is not maintainable as it seeks to set aside a compromise decree. Hence this appeal.

(2.) AFTER hearing the learned counsel for the appellant, I find that the matter has assumed some complications. There is no doubt that an ex parte decree could be challenged by an application under Or. 9, R.13, CPC on the ground that service of summons was not effected on the applicant. By the time, the application under Or. 9, R.13 was made it appears that the order in final decree had already been passed. If a preliminary decree was passed without service of summons on defendant who was a necessary party to the suit, the final decree passed on the basis of such preliminary cannot be allowed to stand and must be set aside, in the event the preliminary decree is set aside, on that ground. In the present case, some other developments have created the confusion. The final decree appears to be a compromise decree on the face of it. The case of the appellant is that she had never signed the compromise petition and had never engaged any lawyer who admitted the same in Court. She has gone to the extent of asserting that she is unable to sign her own name and her purported signatures in the vakalatnama as well as in the compromise petition are all manipulations. In the other words, her case is that the compromise decree is vitiated by fraud practised on her as well as on the Court. The contention of the learned counsel appearing for the respondents is that a compromise decree could not be set aside on the ground of fraud in an application under Or. 9, R.13, CPC. There are, of course authorities to hold that the Court could enquire into such matter in exercise of its inherent power Under Section 151 of the CPC. Because of these developments better remedy would have been by way of a suit. The learned trial Court in the impugned order has also held that a suit could be maintained to set aside the preliminary decree as well as the final decree, which on the face of it was disposed of on compromise. The appellant in this case had taken timely steps in praying in an application under Or. 9, R.13 CPC for setting aside the preliminary decree. A suit for the aforesaid relief, if filed, now would evidently be barred by limitation.

(3.) IN the aforesaid circumstances, I would direct that the application under Or. 9, R.13 CPC filed by the present appellant in the Court below be registered as a suit and the present appellant be called upon to amend the same suitably so as to comply with the requirements of a plaint and pay court -fee as would be payable under law. The plaintiffs shall file such an application for amendment on 1CHh of April, 1992 whereupon the Court would admit the same, if it complies with all requirements of a plaint and proceed with the suit in accordance with law. Expeditious steps must be taken by the Court for early disposal of the suit. The Misc. Appeal is accordingly disposed of with the aforesaid directions. The records of the Court below be sent back to the trial Court immediately.