IMPORTANT POINT
The main legal point established in the judgment is that no independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful, and the importance of compliance with Rule 3B of Order XXIII of the CPC in representative suits.

ORDER :

The present petition is filed under Section 115 of the Code of Civil Procedure Code (hereinafter referred to as ‘the CPC’) challenging the order dated 13.6.2023 passed on IA.No.4 in OS No.152/2021 by the Senior Civil Judge, Bailhongal, (hereinafter referred to the ‘the Trial Court’) whereunder IA.No.4 filed by defendant No.5 under Order VII Rule 11 of the CPC has been dismissed by the Trial Court.

2. The parties herein are referred to by their rank before the Trial Court for the sake of convenience.

3. The relevant facts necessary for consideration of the present petition are that the plaintiff instituted a suit in OS No.152/2021 for partition and separate possession. The defendant No.5 entered appearance in the said suit and contested the case of the plaintiff. Defendant No.5 filed IA.No.4 under Order VII Rules 11(a) and (b) of the CPC to reject the plaint as barred by law. The said application is opposed by the plaintiff. The Trial Court by its dated 13.6.2023 dismissed the said application. Being aggrieved the present petition is filed.

4. Learned Counsel for the petitioner Sri Chetan Munnoli, assailing the order of the Trial Court submits that admittedly in the earlier suit OS No.101/2021 filed for partition a compromise decree was entered in to between the parties and the father of the plaintiff was allotted a share in the said compromise. Hence, it is not open for the plaintiff to file the present suit and he has to claim a share only from the father. It is further contended that the Trial Court erred in dismissing the application filed by defendant No.5 without noticing the bar contained under Order XXIII Rule 3A of the CPC. Hence, he seeks for allowing of the present petition and granting of the reliefs sought for.

5. Per contra, learned counsel for the first respondent Sri Mantagani, justifies the order passed by the Trial Court and submits that the contention put forth by defendant No.5 and the application having been rejected, the said order is not liable to be interfered with by this Court in the present petition.

6. Both the learned counsel have relied on various judgments, which shall be considered during the course of this order.

7. The submissions of both the learned Counsel have been considered and the material on record have been perused. The question that arises for consideration is, whether the order passed by the Trial Court is liable to be interfered with?

8. The necessary facts are undisputed, inasmuch as a suit in OS No.101/2021 was filed against the father of the plaintiff and his brothers and sisters which suit was decreed pursuant to a compromise entered into between the parties in the Lok Adalath and the father of the plaintiff was allotted a share in the said compromise. Admittedly, the plaintiff was not arrayed as a party to the said suit.

9. The plaintiff has filed the present suit for a declaration that he is not bound by the compromise passed in OS No.101/2021 and also seeking for a share in the suit properties. In the plaint, the plaintiff has averred that he was not arrayed as a party to OS No.101/2021 and hence, the said compromise is not binding upon him. It is further averred that he has a right in the suit properties.

10. Order XXIII Rule 3A of the CPC states as follows :

“3A. Bar to suit. – No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.”

11. The Hon’ble Supreme Court in the case of Pushpa Devi Bhagath vs. Rajinder Singh, (2006) 5 SCC 566 after taking note of the scheme of Order XXIII Rule 3 and Rule 3A of the CPC, has held as follows:-

“17. The position that emerges from the amended provisions of Order 23 can be summed up thus:

(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.

(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43