JAIMANGAL KR Vs. DINESH VADAV

JUDGEMENT

(1.) HEARD Sri Shashi Shekhar Dwivedi, senior advocate for the petitioners and Sri Subhash Kishore Verma for the opposite party.

(2.) THIS application is directed against the order dated 23.7.2002 passed by Subordinate Judge, I, Darbhanga, in title suit bearing No. 67 of 2001 by which the court below has rejected the petition of the defendants filed under Order 7 Rule 11(d) of the Code of Civil Procedure (hereinafter referred to as the Code) and has held that the title suit filed for setting aside the compromise decree dated 16.11.2000 passed by Subordinate Judge, I, Jamshedpur in title suit bearing No. 91 of 2000 is maintainable.

(3.) LEARNED counsel appearing for the opposite party, however, refuted the aforesaid submissions and contended that in terms of Order 23 Rule (3) and (3 -A) filing of fresh suit to set aside a compromise decree on the ground of fraud is not barred. In this connection he attempted to make a distinction between a compromise decree passed without noticing the fraud and illegality in regard to the terms of the compromise. According to him separate title suit to set aside the compromise decree vitiated on account of fraud is maintainable. The submission aforesaid in my humble opinion is misconceived and has been made bereft of the provisions contained in Order 23R (3) & (3 -A). Conjoint reading of the two rules would make it crystal clear that any illegality including fraud committed in regard to the compromise decree is required to be questioned in the same court which has passed the compromise decree by filing miscellaneous case and not by separate suit in other court. In coming to this conclusion I am fortified by the judgment of the Hon ble Supreme Court in the case of Banwari Lal (supra); and of this court in the case of Satrughan Singh & Ors. (supra) and I respectfully follow the same.