ORDER

Heard learned counsel for the petitioners as well as learned counsel appearing for respondents.

2. The petitioners, who are defendants in Title Suit no.11 of 2008, have prayed for quashing the order dated 25.2.2010, passed by learned Sub-Judge-IV, Patna in Title Suit no. 11 of 2008 by which he has allowed the amendment petition dated 9.6.2008 filed on behalf of plaintiff-respondent no.1.

3. Before I take up the rival submissions of the parties for consideration, it would be relevant to notice the facts of the case in brief:

4. One Smt Shakuntala Devi, the plaintiff-respondent no.1 filed title suit no. 11 of 2008 in the court of Sub-Judge-IV, Patna against the petitioners-defendants as well as respondents-defendants 2nd set for partition of 1/4th share in the scheduled property.

5. The case of the plaintiff is that late Bipat Mahto was the common ancestor of both the parties, who had two wives. From 1st wife he had one son Deonandan Rai and from 2nd wife he had two sons Dayanand Rai and Nand Kishore Rai. Bipat Mahto died leaving behind the heirs mentioned above. Late Bipat Mahto also had two cousins namely Bilash Bhagat and Bulkan Bhagat, who died leaving behind their heirs. After the death of Bipat Mahto and his two cousins, there was partition among the sons of Bipat Mahto, Bilash Mahto and Bulkan Mahto by mutual agreement. The sons of Bipat Mahto got one joint Takhta in their 1/3rd share and similarly the sons of Bulkan Mahto and Bilash Mahto got their separate Takhta of 1/3rd share and this partition was subsequently recorded in a memorandum of partition deed dated 12.4.1979.

6. The further case of the plaintiff is that Devnandan Rai died issueless in the State of jointness with his brothers who came in possession over his share also. Dayanand Rai also died on 21.1.2004 leaving behind his two daughters namely Shakuntala Devi who is plaintiff and Reshmi Devi who is defendant no.6 in the suit.

7. The defendant nos. 1 to 5, who are petitioners in this writ application, filed their written statement and raised the issue of maintainability of the suit itself. They stated that Dayanand Rai had filed title suit no. 504 of 2003 in the court of Sub-Judge-I, Patna against his brother Nand Kishore Rai and his sons for partition of the property, which is the subject matter of this suit. The defendants-petitioners stated that a compromise decree was passed in the said suit on the basis of compromise petition filed on 5.4.2004. The defendants-petitioners submit that thus the instant suit cannot continue as compromise partition was already entered with father of plaintiff.

8. The plaintiff filed an amendment petition challenging the compromise decree as fraud. The trial court allowed the amendment by order dated 25.2.2010, which is challenged in this writ application by the defendants-petitioners.

9. The petitioners state that remedy before the plaintiff-respondent no.1 was to file a recall petition in the said title suit itself in view of express bar to file a fresh suit under Order XXIII Rule 3-A of C.P.C., which is quoted herein below: –

Order XXIII Rule 3-A: 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.

10. Mr. Partha Sarthi, learned counsel appearing for plaintiff/respondent no.1, submits that Order XXIII Rule 3-A of the C.P.C. would not bar a person, who was not a party to the suit in preferring a separate suit for setting aside the compromise decree, which is not lawful and obtained on the basis of fraud. Learned counsel submits that plaintiff-respondent no.1 was not a party in the compromise decree and as such the bar imposed under Order XXIII Rule 3-A of C.P.C. would not be applicable in her case. Learned counsel submits that Deo Nandan Rai father of respondent no.1 died on 21.1.2004 and the compromise petition was admittedly filed on 5.4.2004. In such circumstances no compromise survived or existed in eye of law. He submitted that a compromise pe