JUDGMENT

Tarlok Singh Chauhan, J. - The defendants are the appellants who aggrieved by the judgment and decree passed by the learned first appellate Court whereby it has reversed the decree of learned trial Court, have filed the instant appeal.

2. One Sanehru Devi widow of Labha Ram filed civil suit No. 37/91 against Khillo Devi (present respondent) claiming herself to be the sole widow of Labha Ram. Khillo Devi appointed Shakti Chand (appellant No. 2) as power of attorney and on that authority submitted a compromise before the Lok Adalat leading to the passing of a compromise decree Ext.P1 dated 05.02.1994. The compromise decree was subsequently challenged by Khillo Devi on the ground that one day prior to the passing of the compromise decree Khillo Devi has cancelled the power of attorney executed in favour of Shakti Chand vide document Ext. PW2/A dated 04.02.1994. Therefore, he (Shakti Chand) had no lawful authority to effect any compromise on the basis of the power of attorney, which already stood cancelled. Therefore, the decree passed by the Lok Adalat on the basis of the compromise was against law and having been obtained by fraud, is liable to be set aside.

3. The learned trial Court dismissed the suit, however, the said decree and judgment was reversed by the learned first appellate Court by declaring that decree in civil suit No. 37/91 dated 05.02.1994 of the learned Sub Judge Ist Class-II, Hamirpur was a result of fraud, misrepresentation and collusion between both the defendants and resultantly the same was set aside and the defendants were prohibited from claiming any interest under the decree.

4. Aggrieved by the judgment and decree passed by the learned first appellate Court the defendants have filed the present appeal which came to be admitted on the following substantial questions of law:-

1. Whether it is open for the lower appellate court to ignore the provisions of proviso and explanation of Rule 3 of Order 23 CPC in the instant case?

2. Whether compromise and decree Ext.P1 passed by Lok Adalat on 05.02.1994 having lawfully acquired sanctity of a judicial order, was correctly accepted by the trial court?

3. Whether the provisions of Order 23 Rule 3A were illegally interpreted by the lower appellate Court resulting setting aside a compromise decree?

4. Whether the documents Ext.P4 i.e. suit No. 37/91, Ext. P1 compromise decree, Ex.P2, P3, PX, PW5/B, PW5/A i.e. written statement, written agreement as per provisions of Order 23 Rule 3 CPC judgment of Sub Judge (I) Hamirpur, written statement of Khillo Devi, copy of power of attorney by Khillo Devi in favour of Shakti Chand, respectively were legally and correctly appreciated by lower appellate Court?

5. Whether the appreciation of law and facts made by lower appellate court of the case, is patently erroneous and defective in law and procedure?

5. However during the pendency of the appeal, Shri G.D. Verma, learned Senior Advocate, for the appellant, only raised question of the maintainability of the suit in view of the specific bar contained in Section 96(3) and Order 23 Rule 3 and 3-A of the Code of Civil Procedure (for short the ''Code'').

6. In addition to relying upon the aforesaid provisions, Shri G. D. Verma, learned Senior Counsel, for the appellant has placed reliance upon the following judgments of the Hon''ble Supreme Court:-

1. Pushpa Devi Bhagat (D) by Lr. vs. Rajinder Singh & Ors. , (2006) AIR SC 2628

2. In R. Rajanna vs. S.R. Venkataswamy & Ors. , (2014) 15 SCC 471

3. In Y. Sleebachen and Ors. vs. State of Tamil Nadu & Anr. , (2015) 5 SCC 747.

7. On the other hand, Shri Bhupender Gupta, learned Senior Advocate, would vehemently contend that a separate suit to assail the compromise, that too, on the ground of fraud was maintainable, especially, when it is settled law that fraud vitiate all transactions. He has placed reliance upon the following judgments:-

1. Kewal Krishan vs. Shiv Kumar & Ors. , (1970) AIR(P&H) 176.

2. S.G. Thimmappa vs. T. Anantha