GURU CHARAN SINGH Vs. MAHATAM SINGH

JUDGEMENT

(1.) THIS civil revision application has been placed before us as a result of reference having been made by one of us (S.N. Hussain, J).

(2.) THE reference has been made on the point as to whether when a decree passed on the basis of compromise is challenged on the ground of fraud etc. by filing a suit, the same is maintainable or not in view of clear bar created under Order XXIII Rule 3A of the Code of Civil Procedure (hereinafter referred to as 'the Code').

(3.) PRIOR to amendment of the Code of Civil Procedure, there was remedy of appeal against an order passed with regard to adjustment of compromise under Order XLIII Rule (1)(m) of the Code, Now after amendment of the Code, by Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), the same has been deleted and Order XLIII Rule 1-A , Sub-rule (2) has been inserted which provides that in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not have been recorded. It is relevant to quote Order XXIII Rule 3 and 3A of the Code. 3. Compromise of suit, Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit]. [Provided that where it is alleged by one party and denied by the other that an adjustment or Satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be Recorded, thinks fit to grant such adjournment.] [Explanation- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful Within the meaning of this rule.] 3A. Bar to suit.- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.