In a partition suit, anyone involved can maintain the suit, and the court should not act as an executing court prior to the decree. The compromise application should be final and in accordance with the law.

Mungeshwar Sahoo, J.

1. This First Appeal is directed against the Judgment/ Order dated 22.03.1996 recording compromise and the final decree signed on 06.04.1996 by Sri Mahendra Narayan Singh, the leaned Subordinate Judge-I, Patna in Title Partition Suit No. 37 of 1994.

2. It appears that originally the Defendant No. 1, Devnandan Singh, had filed this Appeal. On his death, the present Appellant, Amrendra Kumar, who was Respondent No. 1 in this First Appeal, was transposed as sole Appellant. This Amrendra Kumar is son of original Appellant Devnandan Singh. The present Appellant Sri Amrendra Kumar filed aforesaid partition suit claiming 1/5th share in Schedule I and II properties mentioned in the plaint. In the said suit, the Defendant No. 1 was father of the Plaintiff, i.e., Sri Devnandan Sinha. The said Devnandan Sinha Defendant No. 1 had two wives, namely, Smt. Anjali Devi and Smt. Chandrakanta Sinha who were Defendant-Respondent No. 2 and 3. The 3 sons from the second wife Chndra Kanta Sinha are the Plaintiff-Appellant Amrendra Kumar and Defendant-Respondent No. 4 and 5, namely, Dr. Nirmal Kumar and Devendra Kumar respectively.

3. It appears that on 27.09.1995 an alleged compromise application was filed which was signed by both the parties. This compromise application is a part of the decree under challenge. In paragraph 4 and 5 of the said alleged compromise application, it is stated as follows:

4. That the Plaintiff, Defendant No. 1, 2, 3, 4 and 5 have jointly agreed that till the date of the final petition, after fulfilling the above obligations is not filed before this Honble Court, the parties shall be entitled to receive all the benefits, which they are receiving from their respective holdings under their possession from before this compromise petition. 5. That this compromise petition is filed before this Honble Court to keep it on record and no order shall be passed until and unless all the aforesaid conditions are fulfilled.

4. In the prayer portion of the said compromise application, it is prayed as follows:

It is, therefore, prayed that your honour may graciously be pleased to keep this compromise petition on record till another petition is filed before this Honble Court for the disposal of this partition suit.

5. This compromise application has been recorded by the learned Court below by terms of order dated 22.03.1996 and final decree was passed.

6. The learned Counsel for the Appellant submitted that in the alleged compromise petition, the intention of the parties was to file a fresh compromise application and till the second compromise application is filed, prayer was made to keep it on record and it was specifically prayed that the Court should not pass order on this compromise application. From the very beginning, whenever the compromise application was posted, the Defendant No. 1 and the Appellants were always objecting to recording of this compromise application on the ground that the terms and conditions mentioned in the compromise application have not been fulfilled but the learned Court below prior to recording the compromise directed the Nazir to give delivery of possession to the parties and in spite of the fact that the Nazir/Shrestdar gave report to the effect that unless police force is provided, he is not in a position to give delivery of possession then also the leaned Court below rejected the objection of the Appellant and recorded the compromise. The learned Counsel further submitted that although it was clearly stated that second application is to be filed, second application was never filed by the parties. Fraudulently, the Respondent No. 4 and 5 filed an application before the Court below stating that the terms and conditions have been fulfilled and on that date although objection was raised but then it was decided by the Court below and overruled the objection. The learned Counsel further submitted that the learned Court below has adopted a procedure unknown to the law and he himse