GOPAL LAL Vs. BABU LAL

JUDGEMENT

(1.) This appeal is directed against the judgment and order of the learned Single Judge dated 6th Dec. 1995 in S.B. Civil Regular First Appeal No. 17 of 1989. The facts lie in a narrow compass.

(2.) The appellant Gopal Lal and respond ents Babu Lal, Moda Ram and Kishan Lal are sons of Tola Ram. The first respondent Babu Lai instituted a partition suit, being Civil Original Suit No. 28 of 1980, in the Court of District Judge, Bikaner against the appellant and the second and third respondents. A compromise was entered into by and between the parties and consequently a compromise decree was drawn by the trial Court on 31st Oct. 1981. It is significant to note that several years later, the appellant filed a civil suit, being Civil Original Suit No. 49 of 1987 for declaring the compromise decree to be vitiated by fraud. The respondents herein in the written statement, inter alia pleaded that the suit was barred in view of the provisions of Order 23, Rule 3A of the Code of Civil Procedure. The trial Court struck number of issues including issue No. 4 relating to the maintainability of the suit in view of Order 23, Rule 3A , C.P.C. 1908. The issue was decided in favour of the respondents and the suit of the appellant was dismissed.

(3.) Aggrieved by the dismissal of the suit by the trial Court the appellant filed S.B. Civil Regular First Appeal No. 17 of 1989. The learned single Judge affirming the order of the trial Court, dismissed the appeal by his judgment and order dated Dec. 6. 1995 on the ground that a party to a compromise decree can question the same only by filing a petition under proviso to Rule 3 of Order 23, C.P.C. before the trial Court decreeing the suit or by means of an appeal under Section 96 (1), C.P.C. but, he cannot file a suit to set aside a compromise decree on the ground that the compromise was not lawful. Not satisfied, the appellant has filed the instant special appeal against the order of the learned single Judge dated Dec. 6, 1995.