DWARIKA GIRI Vs. BHARMDEO GIRI

JUDGEMENT

(1.) THIS revision petition has arisen out of the order dated 7,11.1998 passed by the Subordinate Judge, Saran at Chapra, in Misc. Case no. 16/97 whereby compromise recorded in Partition Suit No. 269 of 1997 has been set aside under Section 151 of the Code of Civil Procedure holding the same to be unlawful and fraudulent. Admittedly, the parties to the suit are three brothers and the plaintiff - opposite party filed the above mentioned partition suit bearing no. 269 of 1997 for partition of the properties mentioned in Schedule I to IV in the plaint claiming his 1/3 share. The Scheduled properties in the partition suit included ancestral properties and also the purchased properties by the three brothers. It was averred that the defendant no.1 (petitioner no.1) Dwarika Giri was the karta of the family and used to reside in the ancestral house in village while the plaintiff used to work in a colliery and from his (sic) he used to send money to the defendant no.1. When he retired in the year 1990 he came to the village to spend the retired life. Defendant no.2 (petitioner no,2) Bidya Shagar Giri was in military service and after retirement from military service he was working as security guard in the Burn and Company at Asansol, He also used to send money to the defendant no,1. It is a case of the plaintiff that by money sent by the plaintiff defendant no.2 properties were purchased in the name of three brothers although there was no contribution to the consideration amount by the defendant no.1 and as such all the properties including the ancestral and purchased properties the plaintiff had got 1/3 share.

(2.) IN the written statement filed defendant no.2 took the plea that as his income was higher he was sending more money than the plaintiff and as such, he has got more share to the purchased properties. Defendant no.1 also supported the case of the defendant no.2. While the suit was proceeding contestedly a compromise petition was filed, which has been marked as Ext. A in this case, alleged to be signed by the parties and also their counsel and on the basis of the compromise petition a decree was passed forming the compromise petition as part of the decree. Only after two days of the filing of the compromise petition the opposite party -plaintiff filed a petition under Section 151 of the Code of Civil Procedure contending, inter alia, that he was never a party to the compromise petition nor he instructed his lawyer to sign any compromise petition on his behalf and that unequal distribution in the properties in the compromise petition show how fraudulently the compromise decree was procured. It may be mentioned here that in the purchased properties share was given more in favour of the defendant no.2 as per compromise petition. On the basis of the petition being filed under Section 151 of the Code of Civil Procedure Misc. Case no.16 of 1997 was registered, notices were issued to the petitioners and they filed objection supporting the compromise petition. During the course of hearing of the Misc. Case, a hand -writing expert was engaged who found the signature of the opposite party in the compromise petition to be genuine and proper. Both parties adduced evidence in support of their respective cases. After consideration of the documents to the oral evidence learned court below came to the finding that although compromise petition might be signed by all the parties in the last page but the unequal distribution of the properties smacked of fraud being practised on the opposite party and as such holding the compromise petition to be an unlawful and fraudulent one, and the same was set aside by the impugned order. Hence this revision petition.

(3.) ON the last point being raised regarding setting aside of the compromise petition on a petition under Section 151 of the Code of Civil Procedure, Mr. Mazumdar have not stressed much on this point as it has become settled principle of law that compromise decree on the ground of fraud and unlawfulness can be set aside not only under Order 23 Rule 3 of the Code of Civil Procedure but also under Section 151 of the Code of Civil Procedure considering the situation and circumstances of each case. In the present case only after filing of the compromise petition within two days the petition has been filed for setting aside the compromise. It is also legal principle that the court of law has got discretion to accept a compromise if the same is found to be legal and free from all doubts. If it can be shown with doubt about its lawfulness and genuinity a court of law has got right and jurisdiction to set aside the same or not to accept the same and asking the parties to proceed with the suit.