MAIMUN NISA Vs. MOHAMMAD KHODABIN

JUDGEMENT

(1.) This application is directed against an order dt. 5-12-1980 passed in Misc. Case No. 16/80 by 2nd Addl. Subordinate Judge Sitamarhi. By this Order the learned Subordinate Judge dismissed the miscellaneous case holding that the same was not maintainable.

(2.) In partition suit No. 168/73 a petition of compromise was filed and the suit was ordered to be decreed in terms of the same on 10-9-1980, on 13-9-1980 these petitioners who are Pardanashin ladies filed an application stating interalia that the compromise had been obtained by practicing fraud upon them. They alleged that although there was a talk of compromise between them and the opposite party, their left thumb impression was obtained on a piece of Sada paper and Vakalatnama and a petition of compromise was filed in the suit by practising fraud upon them. They inter alia stated that their share in the property was more than 1.50 acres, but, they have been given only 25 acres by the alleged compromise, for which they had never agreed or consented.

(3.) On the basis of the said application a miscellaneous case No. 16/1980 was registered. The opposite party filed a rejoinder stating inter alia that the miscellaneous case was not maintainable either under O.23 R.3 of the Civil P.C. or under S.151 of the Code. The opposite party stated that the petitioners had consented to the compromise, they had put their thumb impression on the petition of compromise and their lawyers had also signed the same. A point was raised that it might be a fraud upon the party but was not a fraud upon the Court, and, therefore, the only remedy open to the petitioners was to file a suit for setting aside the compromise decree. After hearing the parties the learned Subordinate Judge has also found that on the basis of the allegations it cannot be said that it is a fraud upon the Court and, therefore, even under its inherent jurisdiction the Court cannot entertain such application. The miscellaneous application was therefore dismissed. Hence this civil revision application by the two ladies.