RADHIKA DEVI Vs. RAMDEO TIWARY

JUDGEMENT

(1.) THESE two revision petitions have been preferred against the order dated 27.6.1998 passed by Sub -Judge -IV, Motihari in Miscellaneous case no. 3 of 1994 and Miscellaneous Case No. 11 of 1995.

(2.) IN the partition suit no. 300 of 1976 after preliminary decree when the final decree was under preparation then a compromise was effected between the parties as is revealed from the records and the impugned order and that compromise decree was challenged by filing petitioners under -Section 151 of the Code of Civil Procedure by the above -mentioned petitioners before the court below. Objections were filed from the side of the opposite parties and after hearing the parties and on consideration of the oral and documentary evidence from both sides, learned court below came to the finding that although the compromise petition might be suffering from some sort of irregularity/illegality but the same cannot be set aside as fraud, as alleged, could not be proved from the side of the petitioners.

(3.) IT is settled principle of law that in a suit if a compromise is arrived at requesting some outside properties also then the said compromise petition is required to be regarded to get the legality of it. Be it what it may, the fact remains that irregularity, and impropriety are said to be apparent on the face of which the compromise petition is based and although some observation had been made by the learned court below in that line but it had declined to interfere with the compromise decree, on the ground that already a civil suit has been preferred by one of the petitioners namely, Vijay Kumar to fight the compromise decree. It is the submission of Mr. Agarwal that although the petition for setting aside the compromise decree has been filed under Section 151 of the Code of Civil Procedure but it requires to be construed under the provisions of Order 23 Rule 3 of the Code of Civil Procedure and it has also been held by the Apex Court and also by this Court that for avoiding a compromise decree a petition under Section 151 of the Code of Civil Procedure may also be entertained by the Court who passed the compromise decree.