The main legal point established is the authority of the High Court to determine necessary issues in a Second Appeal and the application of the limitation period in setting aside a compromise decree.

JUDGMENT

RAGHUBIR DASH, J.

1. This Second Appeal is in challenge of the judgment and decree dated 22.11.2006 and 6.12.2006, respectively, passed by the learned Additional District Judge, Balasore in R.F.A. No. 19 of 2005 and 102 of 2002 reversing the judgment and decree dated 26.7.2000 and 12.9.2000, respectively, passed by the learned Civil Judge (Senior Division), Balasore in Title Suit No. 173 of 1993-I.

2. The appellant is Defendant No.3. He is R-5 in the First Appeal. The original plaintiff is late Rowjee Padhiar. Respondent Nos. 1 to 4 in this Second Appeal are the substituted L.Rs. of the original plaintiff. They are the appellants before the lower appellate court. Respondent Nos. 5 to 8 are the substituted L.Rs. of late Harimohan Mohanty, Defendant No.1, who died during pendency of the Suit. They are Respondent Nos. 1 to 4 in the First Appeal. It appears, one Radhakumunda Das who was D.2 in the suit has not been arrayed as a party in the First Appeal so also in the Second Appeal.

For the sake of convenience the parties shall, hereinafter, be referred to as per their nomenclature in the cause title of the plaint.

3. Original plaintiff Rowjee Padhiar filed the suit to declare the compromise decree passed by the Munsif, Balasore in T.S. No. 178/90-I as illegal being obtained by exercising fraud on the plaintiff as well as the court, with further prayer for recovery of possession of the suit land and for permanent injunction. Plaintiff’s case, in short, is that he purchased the suit property from one Panu Mohanty under registered sale deed dated 22.5.1964. Defendant No.1 Harimohan Mohanty, who is the son of late Panu Mohanty, filed a Suit bearing O.S. No. 178/90-I in the court of Munsif, Balasore against the plaintiff and Radhamukunda Das (D.2) for declaration of his right, title, interest and possession over the suit land claiming that the sale deed executed by his father in favour of the plaintiff was not a sale deed but a deed obtained as security for a loan availed by late Panu Mohanty from the plaintiff. That suit was decreed on 30.3.1990 in terms of compromise. It is claimed that the compromise petition purportedly filed by the plaintiff was never signed by the plaintiff Rowjee Padhiar. After the compromise decree, D.1 sold the suit land to D.3 (present appellant) under three registered sale deeds dated 18.4.1990. Thereafter, record of right in respect of the suit land was illegally prepared in the name of D.3 and taking advantage of such wrong R.O.R., D.3 disturbed the plaintiff’s possession over the suit land which compelled him to file the suit.

4. Case of D.3, the present appellant, is that his father being hard-pressed for money obtained a loan from the plaintiff and to secure the loan executed the deed marked Ext.1 without intending to alienate the property with a condition that the plaintiff would return the deed after the loan was paid up but Panu Mohanty would continue to remain in possession of the suit land. After death of Panu Mohanty, his son (D.1) continued to remain in possession of the suit land. On 18.4.1990, D.1 sold the suit land to D.3 under three registered sale deeds dated 18.4.1990 and delivered possession of the land to D.3. As regards the compromise decree, D.3 has taken the plea that O.S. No. 178/90-I in the court of Munsif, Balasore was lawfully decreed in terms of compromise.

5. Learned trial court dismissed the suit holding that the sale deed executed by Panu Mohanty in favour of the plaintiff is, in fact, a mortgage deed for which title in the suit land did not pass to the plaintiff under such sale deed; that the suit is not maintainable in view of the provision contained in Rule 3-A of Order 23 of C.P.C. prohibiting filing of a fresh suit to set aside a compromise decree; and that the suit is barred by limitation inasmuch as the compromise decree was passed on 30.3.1990 and the suit was filed on 7.5.1993. Learned lower appellate court reversed the trial court judgment holding that the d