GOPAL LAL Vs. BABU LAL

JUDGEMENT

(1.) A short but an interesting question of law has been raised in this appeal. The point for consideration is whether Order 23, Rule 3-A CPC bars a suit for cancellation of the decree passed on compromise entered into between the parties:

(2.) FACTS FIRST The parties : plaintiff-Gopal Lal and defendants Babulal, Moda Ram and Kishan Lal, are the sons of Tola Ram, who had landed property in the city of Bikaner. Babul Lal filed Civil Suit No. 28/80 for partition of the property left by Tola Ram. This suit proceeded exparte against plaintiff Gopal Lal. However, later on he appeared in Court and the parties entered into compromise and as a result of the compromise, the suit was decreed on 31. 10. 81. It is after three years that the plaintiff filed this suit for setting aside the decree passed on 31. 10. 81 on the ground that the compromised was not read over to the plaintiff and that since plaintiff is illiterate and simple man, he could not understand the implications of the compromise-deed. It was averred that fraud was played by defen- dants on him and so the plaintiff was not bound by the decree and it was liable to be cancelled. The case set up in the written statement was that no fraud was played on the plaintiff and that he had willingly entered into compromise. It was also pleaded that the suit was barred because of the provisions of Order 23, Rule 3-A CPC. The learned Additional Distt. Judge framed 5 issues. Issue no. 4 related to the maintainability of the suit. This issue was decided in favour of the defendants and the suit was dismissed. Hence this appeal.

(3.) NOW there remains the case of `smt. Mohani Bai' (supra) of our own High Court in which it has been observed at para 5 that the consent decree is contract between the parties and suit for adjudging it void and/or setting aside a decree on the ground of its having been obtained through misrepresentation or fraud lies under Sec. 31 of the Specific Relief Act whereunder a person against whom a void or voidable instrument, which includes a decree, and which causes serious injury can file a suit in Civil Court to get it cancelled. It may be noted that in this case, this Court had not addressed itself to the provisions of Rule 3-A of Order 23, or Rule 1-A of Order 43 CPC. The facts of that case were that one `j' instituted a suit in the year 1975 against `m'. The preliminary decree was passed by the learned trial Court. In the first appeal, compromise was filed by the plaintiff and by the Advocate of defendant. This compromise was verified and the suit was decreed in terms of the compromise. As against that compromise decree, Second Appeal was filed in this Court. In that appeal, the defendant challenged the compromise decree on the ground that it was not signed by the defendant herself and was signed only by her Advocate and as such it could not be acted upon. The Second Appeal was dismissed by this Court holding that Order 23, Rule 3 CPC does not debar counsel from signing the compromise petition. Thereafter, the defendant filed an application under Sec. 151 CPC before the trial court for setting aside the decree on the ground that the defendant had not given instructions to her counsel to compromise the Suit. That application was dismissed by the learned Distt. Judge and Civil Revision Petition against that order was filed in this Court. Thus the question before this Court in that case was whether the application under Sec. 151 CPC for cancelling the compromise decree was maintainable or not. This Court held that this petition was not maintainable. There was no occasion to interpret the provi- sions of Rule 3-A or the Explanation appended to Rule 3 of Order 23 CPC. That being so, it cannot be held that this Court authoritatively pronounced that remedy of filing civil suit for getting a compromise decree set aside on the ground of fraud etc. was available. In any case, in view of the Judgment of the Apex Court in the case of `banwari Lal', (supra), it cannot be held that a suit can be filed for setting aside the decree, passed on compromise, on the ground of fond misrepresentation, coercion etc.