Judgment and decree, can be challenged in appeal, passed on compromise.

V. Ratnam, J.

1. The 1st defendant in O.S. No. 315 of 1984, Sub-Court, Coimbatore, is the petitioner in this Civil Revision Petition. That suit was laid by respondents 1 to 7 herein against the petitioner and respondents 8 to 10, praying for the relief of partition and separate possession of the suit properties. According to the case of the petitioner, summons in the suit was served on him and he engaged a counsel and the suit was posted to 28-8-1984, but that on 22-8-1984, respondents 1, 8, 9 and 10 arid two of the Advocate-relations of the petitioner, approached the petitioner and represented that there was no need to contest the suit, as they were agreeable for a compromise on the basis of allotting 1/6 share each to the 1st plaintiff and defendants 1 to 4, and 1/6 share to plaintiffs 2 to 7 together, in respect of the suit items. The further case of the petitioner was that his signatures were obtained on several papers, blank as well as written up, and that the petitioner was informed to be present in Court on 23-8-1984 for reporting the compromise. The petitioner claimed that he was asked to answer questions that may be put by the Court on that day in the affirmative and that petitioner also did so. On that day, the Court being satisfied that the parties to the suit had adjusted the subject matter of the suit by a compromise in writing, passed a decree in terms of the compromise. That compromise, according to the petitioner, was brought about by playing a fraud on him and obtaining his signatures by means of misrepresentation and undue influence as well. So stating, the petitioner filed an interlocutory application purporting to be under Sections 94 and 151 and Order 23, Rule 3, Code of Civil Procedure (hereinafter referred to as 'the Code' for short) praying that the Court may set aside the judgment and decree passed in terms of the compromise on 23-8-1984 in O.S. No. 315 of 1984 and to reopen the case. That application was dismissed by the court below on the ground that the judgment and decree passed on the compromise cannot be allowed to be reopened under Order 23, Rule 3 of the Code and that the remedy of the petitioner would be to prefer an appeal. It is the correctness of this that is questioned by the petitioner in this Civil Revision Petition.

2. Learned Counsel for the petitioner contended, referring to Section 96(3) and the proviso to the Order 23, Rule 3 and 3-A of the Code that as the petitioner could not file an appeal or even an independent suit questioning the compromise, it was the duty of the Court in the exercise of its powers under the Proviso to Order 23, Rule 3 of the Code, to make an enquiry regarding the lawful nature of the compromise and the court below was, therefore, in error in rejecting the application filed by the petitioner. Reliance was also placed in this connection by the counsel for the petitioner upon the decision in Maimum Nisa v. Mohammad Khodabin.

3. On the other hand, learned Counsel for the respondents submitted under the Explanation to Order 23, Rule 3 of the Code, an agreement or compromise, which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful, and, as in this case, the case of the petitioner was that the compromise is either void or voidable, such a compromise would be taken outside Order 23, Rule 3 of the Code and also outside Order 23, Rule 3-A, and therefore, the petitioner could challenge the lawful nature of the compromise in other independent proceedings.

4. Before proceeding to consider the rival submissions made it would be necessary to refer to the relevant provisions of the Code in the matter of passing decree on the basis of compromise between the parties and the available remedies thereafter, both prior to, and after Act 104 of 1976. Under Section 96 of the Code dealing with appeals from the original decrees, it is provided under Sub-section (3) that no appeal shall lie from a decree passed by the Court with the consent of