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Kishori Mukhi Vs. Dhaneswar Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 261 of 1960
Judge
Reported inAIR1962Ori110
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 23, Rule 3
AppellantKishori Mukhi
RespondentDhaneswar Sahu and ors.
Appellant AdvocateB.N. Das and ;N.C. Mohanty, Advs.
Respondent AdvocateR.C. Mohanty, Adv.
DispositionRevision allowed
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 5. as regards the order of the trial court, decreeing the suit in terms of compromise, he was clearly wrong......and the other for setting aside the compromise petition, on the ground of fraud as aforesaid. the learned trial court dismissed the application for setting aside the compromise petition on the ground of fraud but allowed the compromise to be recorded under order 23, rule 3 and passed a decree in accordance with the terms of the compromise. in the judgment the learned trial court however, found that, as it was a case of fraud upon the parties, the application for setting aside the compromise, on the ground of fraud, is not maintainable; that it can only be agitated by way of a suit for setting aside the compromise on the ground of alleged fraud. the learned trial court, however, went into the merits of the case and disbelieved the case of the plaintiff regarding the alleged fraud as.....
Judgment:
ORDER

S. Barman, J.

1. The plaintiff is the petitioner, in this Civil Revision, directed against an order of the learned Munsif, Kendrapara, in T. S. No. 111/56 and Misc. case No. 166/59, whereby he, while dismissing an application for setting aside a compromise petition on the ground of fraud, allowed a decree in terms of the said compromise, in the circumstances hereinafter stated.

2. The matter arose thus; The plaintiff filed a suit being T. S. No. 111 of 1956 for declaration of title and confirmation of possession regarding Ka schedule land and declaration of right of way over Kha sch. lands and also for an injunction restraining the defendants 1, 2 and 3 from obstructing the plaintiff's right of possession. There were eight defendants in the suit of whom defendant No. 1 alone appeared. There was, however, no written statement filed by any of the defendants. On December 6, 1958 a compromise is stated to have been brought about among the parties at the intervention of the Bhadraloks of the village. It is, however, alleged that the terms of the compromise filed in court were otherwise than as filed in the village. The plaintiff filed an application for setting aside the compromise petition, on the ground of fraud under Section 151, Civil Procedure Code, Indeed, there were two applications before the trial court, namely, one for recording the compromise under Order 23, Rule 3, Civil Procedure Code and the other for setting aside the compromise petition, on the ground of fraud as aforesaid. The learned trial Court dismissed the application for setting aside the compromise petition on the ground of fraud but allowed the compromise to be recorded under Order 23, Rule 3 and passed a decree in accordance with the terms of the compromise. In the judgment the learned trial court however, found that, as it was a case of fraud upon the parties, the application for setting aside the compromise, on the ground of fraud, is not maintainable; that it can only be agitated by way of a suit for setting aside the compromise on the ground of alleged fraud. The learned trial Court, however, went into the merits of the case and disbelieved the case of the plaintiff regarding the alleged fraud as pleaded in his petition for setting aside the compromise petition. The revision is directed against the Order of the learned trial Court as aforesaid.

3. The point,--urged on behalf of the plaintiff petitioner,-- is that the trial court should not have gone into the merits and indeed he should have left it open to be decided in a separate suit to be filed by the plaintiff for setting aside the compromise on the ground of alleged fraud. It was, further, contended that the learned trial Court, in exercise of his jurisdiction, acted illegally and with material irregularity, in going into the merits of the question, regarding the alleged fraud while dismissing the application as not maintainable because it could only be agitated in a separate suit

4. Mr. R.C. Mohanty, learned counsel for the opposite parties, however, contended that the application for setting aside the compromise having been dismissed as not maintainable, it would naturally follow, according to him, that a decree would be passed in accordance with the terms of the compromise filed in court, under Order 23, Rule 3, Civil Procedure Code. I do not however accept this contention, urged on behalf of the opposite parties, as it is untenable. The apparent position is that, by reason of the trial court having gone into the merits of the case, regarding the alleged fraud, he prejudged the issue as to fraud, in the application itself, which the learned trial court should not have done. What the learned trial court should have done is to dismiss the application in limine as not maintainable, without going into the merits of the question regarding fraud, and should have relegated the parties to a suit for setting aside the compromise on the ground of alleged fraud, if they were so advised according to law. I, therefore, vary the order of the learned trial court, holding that the application is not maintainable and it is left open to the parties to bring a separate suit for setting aside the compromise petition on the ground of fraud, if they are so advised according to law. The order of the lower Court is modified accordingly.

5. As regards the order of the trial Court, decreeing the suit in terms of compromise, he was clearly wrong. Order 23, Rule 3, Civil Procedure Code provides as follows:

'Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.'

It is, therefore, clear that in order that a decree may be passed in terms of the compromise, the court must satisfy that it was a lawful compromise. In the present case, in view of the allegation of fraud on parties, the learned trial court could not have decided the question whether it was a lawful compromise or not, in the application for setting aside the compromise petition. This matter can only be agitated in a separate suit. Therefore, the decree,--which the learned trial court passed in terms of the compromise,--is set aside. The result, therefore, is that subject to the observation and modification as above, this revision is allowed but without costs of this Court.

6. It must be made clear, however, that in case any of the parties does not file a suit for setting aside the compromise petition on the ground of alleged fraud by the 31st August 1961, the plaintiff's suit will be decreed in terms of the said compromise petition already filed in this suit.


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