The bar under Order XXIII Rule 3A of the CPC does not apply to a stranger to the compromise, and the plea of limitation is a mixed question of fact and law to be determined after evidence has been led by the parties.

JUDGMENT

Navin Chawla, J.

I.As. 2852/2021, 2881/2021 and 3400/2021

1. These applications have been filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the `CPC') by the defendant no.4, the defendant nos.1, 2, 3 and 7, and the defendant nos.5(a), 5(b), and 5(c), respectively, praying for the rejection of the plaint.

2. The grounds urged in support of the above applications are that:

a) The suit is barred under Order XXIII Rule 3A of the CPC, as a suit challenging a decree based on a compromise is not maintainable; and

b) the present suit is barred by limitation.

3. To appreciate the above grounds, it is necessary to first consider the pleadings of the plaintiff in the plaint.

4. It is the case of the plaintiff that the plaintiff, the defendant no.1, defendant no.2, and the defendant no.3 are the real brothers and are co- owners of the ancestral property bearing no.39, Rama Road, Industrial Area Scheme, Najafgarh Road, New Delhi, having an area of 3925.6 meters (hereinafter referred to as the `Suit Property').

5. It is claimed that the father of the plaintiff- late Mr.Satya Pal had three brothers, which included Mr.Tilak Raj, the father of the defendant nos.5(a), 5(b) and 5(c), and Mr.Prithvi Raj (the youngest brother of Late Shri Satya Pal), the defendant no.6 herein, and three sisters.

6. The Suit Property was purchased by way of a Conveyance Deed dated 21.04.1971 by Mr.Satya Pal, Mr.Tilak Raj and Mr.Prithvi Raj. A business of manufacturing soap was started in 1953 in the said premises, in the name and style of M/s Gora Mal Hari Ram.

7. The plaintiff claims that by way of an Oral Family Settlement between Mr.Satya Pal, Mr.Tilak Raj, and Mr.Prithvi Raj, it was decided that the Suit Property would come to the share of Mr.Satya Pal, while the other three properties jointly owned would come to the share of Mr.Tilak Raj and Mr.Prithvi Raj, leaving an option onto them to either keep the same jointly or to separate.

8. There were no legal impediments with respect to transferring the title of the other three properties in the name of Mr.Tilak Raj and Mr.Prithvi Raj, however, there were legal impediments and difficulties in implementing the said Oral Family Settlement with respect to the Suit Property. Therefore, no writing could be executed for the transfer of the Suit Property and the business in favour of Mr.Satya Pal, and the names of all three brothers continued in the record.

9. The plaint further states that in the year 1987, Mr.Tilak Raj took advantage of the aforesaid circumstances and filed a suit for partition against Mr.Satya Pal and Mr.Prithvi Raj before this Court, being Civil Suit no.2850/1987, claiming co-ownership of the Suit Property. The suit was resisted by Mr.Satya Pal claiming exclusive ownership of the Suit Property basis the oral partition through Family Settlement. Mr.Prithvi Raj, however, filed his no objection to the claim of partition.

10. During the pendency of the said suit, Mr.Satya Pal died on 28.07.2006. Mr.Tilak Raj, the plaintiff therein, filed an application for bringing on record the legal heirs of Mr.Satya Pal. Vide order dated 13.11.2006, this Court issued notice on the said application to the proposed legal heirs, that is, the plaintiff herein and Mr.Ranjan Kumar, defendant no. 2 herein, and also Mr.Vinod Kumar and Mr.Pawan Kumar, defendant no. 1 and defendant no. 3 herein, who were already contesting parties to the said suit.

11. The plaintiff asserts that he was served with the notice on 28.02.2007. As Mr.Vinod Kumar, defendant no.1 herein, was already contesting the said suit, he informed the plaintiff that he would protect the interests of the plaintiff herein as well, through his own Advocate.

12. The plaintiff further asserts that in the said suit, the said learned Advocate submitted before this Court, on 15.03.2007, that he appears on behalf of the plaintiff herein also, and took time to file a reply on behalf of the plaintiff to the sa