KAMAKHAYA NARAYAN SINGH Vs. HARIBANSH SINGH

JUDGEMENT

(1.) THE petitioner is defendant ' in a suit brought by the opposite party first set. Upon notice when this defendant appeared, he filed an application questioning the maintainability of the suit in terms of order 23 Rule 3a of the Code of Civil Procedure. Petitioner's challenge was on the ground that the suit filed by the plaintiffs was ostensibly a suit for declaring a compromise decree to be invalid and not binding on the plaintiffs. The petitioner; for this purpose, has placed reliance on a judgment of this Court reported in the case of Surajdeo bharti v. Bishwanath Sah and others being 2007 (1) PLJR 275 : (AIR 2007 Pat 24 ).

(2.) HAVING heard the learned counsel for the parties, I am satisfied that the plea of the petitioner/defendant in the Court below has rightly been rejected and the judgment cited aforesaid has no application to the facts of the present case.

(3.) IT is no doubt well established that a compromise decree cannot be challenged except before the Court that passed the decree. But the question is whether in the present case, the decree, which has been sought to be challenged in a separate suit, was a compromise decree or not. In the earlier suit, the decree whereof is being challenged, there were several parties including the present plaintiffs opposite party first set. The plaintiffs to the first suit along with some of the defendants (not all and not the plain- -tiffs of the second suit) entered into compromise. In respect of the rest, the Court proceeded and passed a decree in terms of order 8 Rule 10 of CPC. Therefore, the decree was a composite decree partly in respect of some persons on compromise and in respect of others in terms of Order 8 Rule 10 of CPC. As the plaintiffs of the second suit remained absent, the compromise decree itself did not bind them for they were absent and did not enter into any compromise and, therefore, they cannot be said to be parties to a compromise decree. They challenged the decree as against them passed in terms of Order 8 Rule 10 of CPC. This is materially different from challenging a compromise decree. Therefore, I have been left with no option but to affirm the order as passed by the trial Court. Petition dismissed.