Heard Mr. Mahesh Narayan Parbat, learned counsel for the petitioners.

2. This application under Article 227 of the Constitution of India has been filed questioning the order dated 4.7.2009 passed by learned Sub Judge VIII, Saran at Chapra in Misc. Case No. 90 of 2008 whereby the learned Court below has been pleased to reject the application filed by the opposite parties 2nd set-petitioners questioning the maintainability of the Miscellaneous Case on grounds of jurisdiction as also on grounds of limitation.

3. The learned Court below while holding that the issue of limitation shall be considered after evaluation of the evidence led by both sides, has by the same order held the Miscellaneous Case maintainable.

4. Mr. Parbat, learned counsel for the petitioners has questioned the impugned order on grounds that the issue of limitation ought to have been settled at the first instance and if the Miscellaneous Case was found to be barred by limitation, there was no occasion for the learned Court below to force the opposite party to undergo the rigours of the trial.

5. In so far as the issue of limitation is concerned, perusal of the order impugned manifests that the same has not been rejected rather the consideration of the objection has been postponed by the learned trial Court to be considered after evaluation of evidence. The view of the learned trial Court finds support from the judicial pronouncement of the Supreme Court reported in 2006(3) PLJR 277(SC) (Gunwantbhai Mulchand Shah Vs. Anto Elis Farel & Ors.) and thus does not call for any interference.

6. This brings us to the consideration of the objection regarding the maintainability of the case and the jurisdiction of the Court below to proceed with the Miscellaneous Case.

7. Mr. Parbat, questioning the Miscellaneous Case submits that in view of the Division Bench pronouncement of this Court reported in 2006(3) PLJR 345 (Guru Charan Singh & Ors. Vs. Mahatam Singh & Anr.), though a party to a compromise has a remedy by way of an appeal under Section 96(3) of the Code of Civil Procedure, certainly a Miscellaneous Case is not maintainable.

8. Mr. Parbat, contends that even if a Miscellaneous Case is maintainable at the instance of a party to a compromise inter alia on grounds of the compromise being recorded by practicing fraud on the Court by the party concerned, under the provisions of Section 151 of the Code of Civil Procedure, the said provision is not applicable to the petitioners who have questioned the decree on other grounds.

9. The Miscellaneous Case has been filed under the provisions of the proviso to Order 23 Rule 3 of the Code and a copy of the application is placed at Annexure-3 to the proceedings. Thus the said objection of Mr. Parbat does not hold substance. Even otherwise the issue whether or not a forum of Miscellaneous Case is available to a party to a compromise, stands concluded by a Bench decision of this Court reported in 2010 (1)PLJR 560 (Smt. Prabhawati Sinha Vs. Heera Rai). A Bench of this Court considering the judgments on the issue including the Division Bench judgment rendered in the case of Guru Charan Singh relied upon by Mr. Parbat, has proceeded to hold in paragraph 19 as follows:–

“19. In view of the aforesaid, I also respectfully follow the law laid down by the Apex Court and this Court, as discussed above, and hold that Title Suit No. 377/2005 filed for setting aside the compromise decree passed in Title Suit No. 140/2005 was not maintainable. The trial Court has committed serious error of jurisdiction in holding that the suit is maintainable and in deciding to proceed further in the matter. The remedies available to the plaintiffs-opposite parties were either by filing a Miscellaneous Case before the same court for recall of the order recording compromise and consequential decree or to challenge the decree in an appeal or to challenge the decree in an appeal under Section 96(1) of the Code.”

10. Although Mr. Parbat tried to distinguish the judg