A 3rd party who is a stranger to a compromise decree and is severely prejudiced by the same has a vested legal right to maintain suit proceedings.

1. Heard learned counsel for the parties. This civil revision application is directed against the order dated 13.7.2011 passed by the learned Sub-Judge-II, Patna in Title Suit No.618 of 2010, whereby the objection raised by the defendant-petitioners as regarding the maintainability of the suit in the light of the provisions of Order 23 rule 3A of the Code of Civil Procedure (hereinafter referred to as the Code) and section 151 thereof, has been rejected and the suit has been held maintainable. With the consent of the parties, the matter has been taken up at the stage of admission, with a view to its final disposal.

2. A family genealogy has been placed on record at Annexure-A to the counter affidavit filed on behalf of the plaintiff-opposite party 1st set and according whereto, the parties are said to be descendants from a common ancestor Shri Thakur Prasad. The said late Thakur Prasad is stated to have married twice. Whereas Pandey Ambika Prasad is stated to be the son from the first wife, the other parties to the proceedings are lineal descendents from the second wife. The property in question is a residential house, namely, Jhunjhun Mahal situate in New Yarpur, P.S. Gardanibagh in the town and district of Patna.

3. Records of the proceedings manifest that the Petitioner no.1, Ashok Kumar Pandey, son of Pandey Ambika Prasad had secured a loan from one Sahay Properties and Investment Private Limited, Muzaffarpur. Upon non-refund of the said loan, the said finance company filed a money suit giving rise to Money Suit No.120 of 1968 and which was decreed against petitioner no.1, Ashok Kumar Pandey. The decree was put to execution giving rise to Execution Case No.66 of 1971 and the property in Jhunjhun Mahal was advertised for auction sale in newspaper on 16.7.1979. Records further manifest that at that stage Pandey Vishwanath Prasad appeared in the execution case and while contesting the right, title and interest of petitioner no.1 in the suit property, satisfied the loan amount by deposit of the decretal amount for protection of the ancestral property in Jhunjhun Mahal. It is the case of the petitioners that as Pandey Vishwanath Prasad in return of the deposit of the decretal amount got his name mutated in the municipal records a title suit bearing T.S. No.454 of 1983 was filed by the petitioner no.1 while claiming to be the adopted son of PandeyAmbika Prasad, for declaration of title in the suit property, i.e. Jhun Jhun Mahal arraying Pandey Vishwanath Prasad as sole defendant. The suit in question was compromised and a compromise decree was passed on 15.7.2010 by learned Sub-Judge-IX, Patna. The plaintiff-opposite party 1st set upon gathering knowledge of the compromise decree dated 15/23.7.2010 passed in T.S. No.454 of 1983, have filed the title suit in question alleging that the compromise decree had been obtained by fraud and without impleading necessary parties. The suit was registered as Title Suit No.618 of 2010. The petitioners objected to the maintainability of the suit in view of the provisions underlying Order 23 rule 3A of the Code. The objection having been rejected by the impugned order hence this civil revision application.

4. Mr. Shiva Nandan Roy, learned senior counsel appearing for the petitioners has questioned the impugned order in the backdrop of the provisions underlying Order 23 rule 3A of the Code. It is submitted that the provisions of Order 23 rule 3A of the Code are explicit and self eloquent when it prohibits filing of any suit questioning a compromise decree. It is contended that even if the remedy by way of miscellaneous case or an appeal may be available to the party concerned but in view of prohibition under Order 23 rule 3A of the Code a suit is not maintainable and to that extent the order impugned is fit to be set aside. It is contended that whether or not the party complaining to the consent/compromise decree was party to the proceedings is immaterial in view of the tenor of Order 23 r