N. Kumar, J.

1. The plaintiff has preferred this appeal against the order passed by the Trial Court on an application filed under Order 7 Rule 11 of C.P.C. by the 1st defendant requesting the Court to dismiss the suit as not maintainable.

2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

3. Plaintiffs filed O.S. No. 438/2011 on the file of the Fast Track Judge, Devanahalli for partition and separate possession of their 1/5th share in all the plaint schedule properties and for a decree to set aside the compromise petition dated 28.03.2005 filed under Order 23 Rule 3 r/w Section 151 C.P.C. by the plaintiffs and the defendants in O.S. No. 121/2000 on the file of the Second Additional Senior Civil Judge, Bangalore Rural District at Bangalore on the ground that fraud and misrepresentation was practiced on them in obtaining their signatures on the compromise petition and for other consequential reliefs.

4. After service of summons, the defendant entered appearance and filed an application under Order 7 Rule 11 of C.P.C. contending that if the plaintiffs' case is that compromise decree was obtained by fraud, their remedy is to approach the very same Court, which passed the compromise decree and they have no right to maintain a separate suit for setting-aside the said compromise decree. They further contend that the statutory provisions contained in the Civil Procedure Code in particular Order 23 Rule 3A, categorically states that no suit shall lie to set-aside a decree on the ground that the compromise on which the decree was passed was not lawful. Therefore, they sought for rejection of the plaint.

5. The plaintiffs filed their objections contending that the subject matter of the earlier proceedings is only item No. 8 of the plaint schedule property. The compromise relates only to that item and there is no compromise in respect of other items of the plaint schedule property.

6. The Trial Judge after considering the material on record and hearing the parties recorded a categorical finding that the earlier compromise is not confined to only item No. 8. All the properties, which are the subject matter of the present suit were the subject matter of the earlier suit and the plaintiffs had given up their right in the entire schedule properties on a receipt of a sum of Rs. 4,00,000/- from the 1st defendant. Therefore, the contention that it was confined to only item No. 8 of the plaint schedule was not accepted. Further it held that if the grievance is that the said compromise was brought about by practicing fraud by the 1st defendant, his remedy was to approach the very same Court, which passed the compromise decree and the suit for setting aside the decree is not maintainable. Therefore, the learned Trial Judge allowed the application under Order 7 Rule 11 dismissing the suit filed by the plaintiff. Aggrieved by the said order, the plaintiffs have preferred this appeal.

7. We have heard the learned counsel for the parties.

8. The question that arises for our consideration in this appeal is as under:

If the party chooses to challenge the compromise decree, which is the forum before which such a challenge is to be made?

9. Order 23 Rule 3 provides for compromise of the suit. It reads as under:

R. 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 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 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