URMILA SINGH Vs. SATENDRA SINGH AND ORS.

JUDGEMENT

(1.) This application is directed against the order dated 20.3.2007 passed by learned Subordinate Judge-1, Aurangabad (Bihar) whereby the learned Court below has been pleased to dismiss the Misc. Case No. 3 of 1993 filed by the petitioner under proviso to Order 23 Rule 3 of the Code of Civil Procedure (hereinafter referred to as the 'Code') for setting aside the compromise decree passed in Partition Suit No. 87 of 1986. Facts of the case giving rise to the present application in brief is that a Title Suit No. 87 of 1986 was filed by the opposite party No. 1 together with his minor son in the capacity of a guardian, seeking partition of the joint family property against his father, mother and the petitioner. A compromise petition was filed on behalf of the contesting parties on 4.5.1987. Following the compromise petition, the suit was disposed of by the compromise decree dated 27.7.1987. The petitioner feigning ignorance about the compromise decree, has stated that upon gathering knowledge of the same, she immediately applied for certified copy of the judgment and decree on 2.6.1989 and obtained it on 4.7.1989. It is stated that immediately thereafter she filed a Title Suit No. 199 of 1989 for setting aside the compromise decree but as it had been filed before a wrong forum, the same was withdrawn on 26.7.1990. Thereafter the petitioner filed another suit giving rise to Title Suit No. 59 of 1990 in the Court of Sub Judge-I, Aurangabad on 30.7.1990. A petition was filed on 29.4.1993 in the said suit, seeking permission of the Court to convert the same into a miscellaneous case and which was allowed on the same date giving rise to Misc. Case No. 3 of 1993. The said miscellaneous case has been dismissed by the order impugned dated 20.3.2007 on merits as well as on grounds of being barred by limitation and hence the present application.

(2.) Mr. Kamala Prasad Roy, learned counsel appearing on behalf of the petitioner, while questioning the order impugned has referred to the concluding lines of paragraph 2 to submit that the Court below having permitted the petitioner to convert the title suit into a miscellaneous case after hearing the parties, has committed a serious infirmity in holding that the same was barred by limitation and did not accompany any petition for condonation of delay. The petitioner had no knowledge about the compromise petition filed in the Title Suit No. 87 of 1986 nor did she put her signatures on the compromise petition or had given her evidence in support of the compromise and in absence of these relevant factors, the compromise decree is illegal. It is stated that the learned Court below having recorded its finding at paragraph 9 of the impugned order that the signatures of the petitioner on the compromise petition dated 4.5.1987, did not tally with a specimen signature and despite taking note of the expert report, has held the same inconclusive and not reliable.

(3.) On the aforementioned grounds and on the strength of the judgment of the Supreme Court Dhurandhar Prasad Singh vs. Jai Prakash University and Others, 2001 AIR(SC) 2552 it is submitted that the compromise decree being a nullity, has to be declared as such and that the order impugned is contrary to the legal position.