BALJINDER SINGH Vs. GURDIAL KAUR

JUDGEMENT

(1.) This appeal has been filed against the order of the learned Appellate Court allowing the appeal of the respondent and remanding the case back for fresh decision.

(2.) The respondent had filed the suit challenging the exparte decree obtained by the appellant on the ground that it was vitiated by fraud. Learned Trial Court held that the only option available to the respondent was either to move an application under Order 9 Rule 13 CPC or file an appeal. Consequently, the suit was dismissed. In the appeal, learned Lower Appellate Court relying upon a judgment of the Hon'ble Supreme Court in Bhanu Kumar Jain v. Archana Kumar, 2005 2 RCR(Civ) 781, allowed the appeal holding that in a situation where fraud is alleged, a suit to challenge the decree is maintainable. Learned counsel for the appellant has placed reliance on a decision of this Court in Prakash Kaur & Ors. v. Satta & Ors., 2006 2 CivCC 253 and has canvassed that after considering Bhanu Kumar Jain , this Court held as follows :-

(3.) He has also relied upon another judgment of this Court in Smt. Shanti Devi (dead) represented by LR. v. Gian Chand, 2008 1 RCR(Civ) 658, wherein this Court relying upon the case of Banwari Lal v. Chando Devi (Smt.) (through LRs), 1993 1 SCC 581 and Pushpa Devi Bhagat (D) Th. LR. Smt. Sadhna Rai v. Rajinder Singh, 2006 3 RCR(Civ) 480, held that the suit challenging the compromise decree is not maintainable. However, a perusal of this judgment reveals that the findings were that the compromise was unlawful (and not fraudulent).