UMESH KUMAR Vs. LILA BAI

JUDGEMENT

(1.) The present revision petition has been filed by the petitioner against the order dtd. 15/4/2023 passed by learned Additional District Judge No.1, Nimbahera, District Chittorgarh in Civil case No. 103/2022 by which the court below rejected the application filed by the petitioners under Order 7 Rule 11 CPC.

(2.) Respondent No.1 herein filed application under Sec. 151 CPC for cancellation of the compromise decree dtd. 1/2/2011 passed in Civil Original Suit No. 126/2010. She also filed an application under Order 18 Rule 16 CPC read with Order 19 rule 3 CPC with the prayer that her statement may be recorded. The petitioner no.1 filed reply to the application and raised a preliminary objection with regard to maintainability of the application filed under Sec. 151 CPC. Thereafter, the petitioners filed an application under Order 7 Rule 11 CPC with the prayer to reject the said application being barred by limitation. The respondent no.1 filed reply to the said application. The learned trial court after hearing arguments of both the parties rejected the said application by way of impugned order dtd. 15/4/2023.

(3.) Learned counsel for the petitioners submits that a perusal of the application under Sec. 151 CPC would go to show that the respondent levelled allegation that the petitioners had obtained the compromise decree dtd. 1/2/2011 by way of fraud and therefore, the compromise decree may be cancelled. It is argued that a compromise decree obtained on the basis of consent of the parties cannot be set aside on an application under Sec. 151 CPC and the only remedy available to the respondent no.1 is to file a civil suit for setting aside the decree. It is further argued that the compromise decree was granted in the year 2011 whereas, the application under Sec. 151 CPC for cancellation of compromise decree was filed in year 2022 i.e. after 11 years of the cause of action. Thus, the limitation for filing an application for cancellation of decree is three years but in the present case, the application has been filed after a delay of 8 years and therefore, the suit is clearly barred by law. It is further argued that Sec. 14 of Limitation Act provided that the period can be excluded if someone has wrongly filed the suit but in the instant case, the respondent did not choose to file application under Sec. 14 of the Limitation Act and therefore, there was no occasion for the court below to exclude the period of eight years on the ground that the respondent had wrongly filed the suit for cancellation of compromise decree in the year 2012 which was withdrawn in the year 2022. Therefore, the application filed by the respondent itself is not maintainable and the suit is liable to be rejected. In support of his submission he has placed reliance of the decision of the Hon'ble Supreme Court in Ajanta LLP vs. Casio Keisanki Kabushiki Kaisha d/b/a Casio Computer Co. Ltd. and another [(2022) 5 SCC 449].