JUDGMENT :

SANJAY KAROL, J.

1. Leave Granted.

2. This appeal has been filed by the Appellants (the legal heirs of the original plaintiffs and other co-sharers) who are aggrieved by the dismissal of civil revision no.103 of 2024 by learned single judge of the High Court of Judicature at Patna which was in turn directed against order dated 7th February 2024 passed by Sub-Judge-01(East) Muzaffarpur in Miscellaneous Case No.07 of 2022, whereby petition for setting aside decree dated 22nd February 1994 in Suit 128 of 1989¹[Partition suit], on the basis of a compromise entered by Sub-Judge-01, Muzaffarpur²[Civil Court], was allowed.

3. The plaintiff, Dinbandhu Ojha, filed a partition suit, including, against the predecessors of the present respondent, seeking 1/4th share in the total property of common ancestor by the name of Thakur Ojha. Chaturbhuj Chaudhary (Defendant No. 5), the abovesaid predecessor of the respondents appeared through counsel on summons in the suit. During the pendency thereof, a compromise petition was filed by the plaintiffs and defendants ‘jointly’ which was accepted by Sub-Judge-01 Muzaffarpur vide order dated 22nd February 1994. Pursuant thereto, a final decree was prepared on 27th May 1997 in terms of the above said compromise petition. All appeared fine for approximately a quarter of a century thereafter, but it was not so. The defendant no.5 represented through LRs - the respondents herein filed a Miscellaneous Case No.07 of 2022 before the concerned Court on 7th April 2022, seeking setting aside of the aforesaid compromise decree on the ground that the same had been obtained by fraud and without the signatures of defendant no.5. The same was allowed by the Trial Court, on 07.02.2024. Appeal there against has been dismissed by the High Court. Hence, the case is before us.

4. The short question which arises for consideration is whether the compromise as accepted by the Civil Court on 22nd February 1994 was in accordance with Order XXIII Rule 3 of Code of Civil Procedure, 1908³[CPC] or not?

5. We are of the considered view that it was not. Our reasons for such a conclusion shall be made clear in the following paragraphs.

5.1 Order XXIII is titled ‘Withdrawal and Adjustment of Suits’ and Rule 3 thereof provide for compromise of suit in the following terms:

“3. Compromise of suit.—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 in writing and signed by the parties or where the defendant satisfied the plaintiff in respect to 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 parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation.— An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.”

(emphasis supplied)

5.2. A perusal of various decisions of this Court reveals the following aspects regarding compromise decree:

(a) Prior to the 1976 Amendment to the CPC, a compromise could be either oral or written, and the Court could decide the same on the basis of general evidence by the parties, Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270.

(b) After the amendment, it has been clarified that a compromise must be in writing and must be signed by the parties, Som Dev v. Rati Ram, (2006) 10 SCC 788.

(c) The objective of the amendment is to prevent f