BANITA CHOUDHURY Vs. SUBRATA PATI

JUDGEMENT

(1.) Petitioner in this application has challenged the order dated 16.12.2011 passed by learned Civil Judge (Sr.Divn.) 1st Court, Cuttack in Interim Application No. 324 of 2007 recalling the judgment and decree passed on 17.8.1992 and 27.8.1992 respectively in T.S. No. 320 of 1992. The facts leading to the present case as narrated in the application are as follows:-

(2.) While the matter stood thus the present petitioner filed C.S. No. 243 of 2007 against one Madhusmita for permanent injunction as she has disturbed the possession of the petitioner over the suit property. In the said suit the petitioner has pleaded that the factum of earlier suit which was ended on compromise in support of her claim. After receiving notice by the defendant in the said suit the present opposite party came to know about the earlier T.S. No. 320 of 1992. She is the vendor of aforesaid Madhusmita who was the defendant.

(3.) The opposite party thereafter enquired into the matter and filed Interim Application No. 324 of 2007 to set aside the compromise decree taking a plea that she is the adopted daughter of Sashirekha who has purchased the property on 19.2.1964. After purchase she remained in peaceful possession of the same. Sashirekha and her husband Nilamani lost two daughters at an early stage for which they decided to adopt her as she is the daughter of Nilamani's sister. After their death the opposite party performed the funeral ceremony. Sashirekha died on 31.7.2004. After death of Sashirekha the opposite party being the successor has alienated the property in favour of Madhusmita Gochhi by registered sale deed dated 5.2.2007. The purchaser is in possession of the property. On the above pleadings she has seeking the relief to set aside the compromise decree dated 17.8.1992 and also the decree passed in T.S. No. 320 of 1992. She has disputed that Sashirekha has not appeared and filed Vakalatnama in the said suit which was fraudulently obtained and the compromise decree is not binding on her.