DEBASIS JENA Vs. RAJENDRA KUMAR DAS

JUDGEMENT

(1.) This writ application is directed against the order dated 15/2/2007 passed by the learned District Judge, Balasore in RFA No. 138 of 2004 dismissing the appeal as not maintainable and consequently holding that the application filed under S. 5 of the Limitation Act is inconsequential.

(2.) Opposite parties 1 to 4 filed Civil Suit No. 745 of 2004 in the Court of the learned Civil Judge (Senior Division), Balasore for declaration of right, title, interest over the suit schedule land and for permanent injunction. The petitioners and opposite parties 5 and 6 were defendants in the suit. The case of the plaintiff opposite parties 1 to 4 is that the suit schedule land originally belonged to the defendants but the plaintiffs took over possession in the year 1990 and have been possessing the same by exercising their right of ownership openly, peacefully and continuously to the knowledge of the real owner. The case of the plaintiffs is that when the defendants attempted to take forcible possession of the suit land, the plaintiffs had no other option except to file the suit. During pendency of the suit, the petitioners, who are defendants in the suit, proposed for an amicable settlement since they were staying in West Bengal and on the request of the plaintiff opposite parties 1 to 4, they had signed in a blank paper as well as in the vakalatnama in good faith expecting that there was a mutual partition between the parties. The plaintiffs also assured the defendants that they will obtain a partition decree from the Court. However, lateron, on inspection of records, it came to the knowledge of the petitioners that the plaintiff-opposite parties 1 to 4 by utilising the paper signed by the petitioners fraudulently got a decree on the basis of the compromise in the said suit. Accordingly, they filed an appeal challenging the said decree before the learned District Judge, Balasore. The said appeal was dismissed on the ground of maintainability holding that no appeal is maintainable against a consent decree passed by the Lok Adalat and otherwise also the appeal is not maintainable under the Code of Civil Procedure. There was delay in filing the appeal and an application under Section 5 of the Limitation Act had been filed. But the Court having held that the appeal is not maintainable also observed that the application under Section 5 of the Limitation Act become inconsequential. Challenging the said order, the present writ application has been filed.

(3.) The sole question to be decided by this Court is as to whether the appeal was maintainable before the learned District Judge, Balasore against the compromised decree or not. Shri S. P. Mishra, the learned senior counsel appearing on behalf of the petitioners submitted that the decree has in fact been passed by the learned Civil Judge (Senior Division), and not in the Lok Adalat. According to Shri Mishra, the learned senior counsel appearing for the petitioners, the suit was decreed on compromise by the learned Civil Judge (Senior Division). In the order sheet, it was mentioned that the record be transmitted to the Lok Adalat for drawing of the decree. However, the order sheet shows that the decree has been signed by the learned Civil Judge (Senior Division) and, therefore, under no stretch of imagination it can be said that the decree was passed by the Lok Adalat. On the above submission, it was contended that the appeal is maintainable. Shri R. K. Mohanty, the counsel appearing for the opposite parties 1 to 4, who are plaintiff in the trial Court, submitted that the order sheet is clear to the effect that the compromise petition was filed, the record was transmitted to the Lok Adalat and on consent of the parties, the decree was drawn by the Lok Adalat. The decree holding been drawn by the Lok Adalat, no appeal is maintainable under the Legal Services Authorities Act, 1987. Shri Mohanty, the learned counsel appearing for the opposite parties also contended that against a consent decree no appeal is otherwise maintainable under the CPC.