Fraudulent compromise decree obtained by playing fraud upon the court cannot be sustained in the eye of the law. Necessary parties should be impleaded in the appeal to ensure a fair and just decision.

ORDER :

1. Heard learned counsel for the petitioners as well as learned counsel for respondent no.1. No one appeared on behalf of the remaining respondents in spite of repeated call.

2. Petitioners have filed this petition under Order 23 rule 3 and section 151 of the CPC for recall of compromise decree dated 20.1.2000 passed by a bench of this court in F.A. no. 208/1979.

3. Admittedly, one Most. Rameshwari filed Title Partition suit no. 626/1972/29/1978 against Gaya Mahto and others and during the pendency of the aforesaid title partition suit, Most. Rameshwari transferred her share to respective petitioners either by executing registered sale deed or by executing gift deed. Moreover, in the aforesaid Title Partition suit no. 626/1972/29/1978, preliminary decree was passed which was challenged before this court by filing F.A. no. 208/1979. During the pendency of the above stated F.A. no. 208/1979, Most. Rameshwari died and appellant got expunged name of Most. Rameshwari on the ground that Most. Rameshwari died without leaving any legal representative and accordingly, vide order no. 23 dated 13.7.1999 of F.A. no. 208/1979, name of Most. Rameshwari was expunged. However, it appears that appellant of F.A. no. 208/1979 intentionally suppressed this fact that before her death Most. Rameshwari had already transferred her interest in the suit property to the petitioners of the present petition. It would further appear from perusal of the record that after death of Most. Rameshwari, appellant Gaya Mahto and respondent no.2, Bikrama Mahto filed compromise petition before this court in F.A. no. 208/1979 and in the aforesaid compromise petition, they pleaded that after death of Most. Rameshwari, they became entitle for half and half share in the suit property and on the basis of pleadings of the aforesaid compromise petition, this court disposed of F.A. no. 208/1979 vide order dated 20.1.2000 in terms of compromise.

4. Learned counsel appearing for the petitioners submitted that the impugned order dated 20.1.2000 goes to show that prior to filing of compromise petition, purchasers had filed intervener petition but this court was misled by the appellant and respondent no.2 of the aforesaid first appeal placing this argument that interest of purchasers interveners had been conceded in compromise petition and due to the above stated misleading statement of appellant and respondent no.2 of F.A. no. 208/1979, a bench of this court disposed of the aforesaid F.A. no. 208/1979 in terms of compromise petition.

5. Learned counsel for the petitioners further submitted that, as a matter of fact, nothing had been mentioned in the compromise petition in respect of purchasers of the share of Most. Rameshwari which is evident from perusal of annexure 5 to the compromise petition filed in F.A. no. 208/1979. He, further, submitted that after disposal of F.A. no. 208/1979, Execution case no. 05/2004 was filed and when the concerned Nazir went on the spot to effect delivery of possession, petitioners came to know about disposal of F.A. no. 208/1979 as well as fraud played by appellant and respondent no.2 of the aforesaid first appeal and thereafter, they immediately, filed present petition for recall of order dated 20.1.2000 passed in F.A. no. 208/1979.

6. Learned counsel for the respondent no.1 refuted the above stated submissions arguing that, no doubt, petitioners are purchasers of share of Most. Rameshwari but, as a matter of fact, this court considered the claim of the purchasers at the time of passing the impugned order dated 20.1.2000 and that is the reason a bench of this court observed in the impugned order dated 20.1.2000 that claim of the petitioners had been conceded in compromise petition. He, further, submitted that moreover, petitioners have come before this court more than after nine years of passing the order dated 20.1.2000 and they have no any plausible explanation of the aforesaid delay.

7. Order 23 rule 3 of the CPC says that no suit shall lie