JUDGMENT :

Sanju Panda, J.

1. Petitioner in this application has challenged the order dated 16.12.2011 passed by learned Civil Judge (Sr.Divn.) 1st Court, Cuttack in Interim Application No. 324 of 2007 recalling the judgment and decree passed on 17.8.1992 and 27.8.1992 respectively in T.S. No. 320 of 1992. The facts leading to the present case as narrated in the application are as follows:-

The present petitioner filed T.S. No. 320 of 1992. The said suit was decreed on compromise on 17.8.1992. The plaintiff in the said suit pleaded that the suit property was purchased by her father on 1.1.1969 for a consideration of Rs. 50/- from one Sashirekha and was in possession of the same. As there is no record of such transfer of land and the purchaser was in possession of the property from the date of purchase after him his daughter was in possession. The daughter has filed the suit claiming of her right over the property impleading the owner of the property Sashirekha as defendant. A decree was passed in the suit on compromise. The defendant has accepted the averment made in the plaint. After the suit was disposed of the decree was drawn up.

2. While the matter stood thus the present petitioner filed C.S. No. 243 of 2007 against one Madhusmita for permanent injunction as she has disturbed the possession of the petitioner over the suit property. In the said suit the petitioner has pleaded that the factum of earlier suit which was ended on compromise in support of her claim. After receiving notice by the defendant in the said suit the present opposite party came to know about the earlier T.S. No. 320 of 1992. She is the vendor of aforesaid Madhusmita who was the defendant.

3. The opposite party thereafter enquired into the matter and filed Interim Application No. 324 of 2007 to set aside the compromise decree taking a plea that she is the adopted daughter of Sashirekha who has purchased the property on 19.2.1964. After purchase she remained in peaceful possession of the same. Sashirekha and her husband Nilamani lost two daughters at an early stage for which they decided to adopt her as she is the daughter of Nilamani's sister. After their death the opposite party performed the funeral ceremony. Sashirekha died on 31.7.2004. After death of Sashirekha the opposite party being the successor has alienated the property in favour of Madhusmita Gochhi by registered sale deed dated 5.2.2007. The purchaser is in possession of the property. On the above pleadings she has seeking the relief to set aside the compromise decree dated 17.8.1992 and also the decree passed in T.S. No. 320 of 1992. She has disputed that Sashirekha has not appeared and filed Vakalatnama in the said suit which was fraudulently obtained and the compromise decree is not binding on her.

4. The present petitioner contested the said proceeding traversing the allegation made by the opposite party and contended that the opposite party has averred that she was adopted when she was only five days old. However when she was aged about 7 to 8 years in the year 1960 the giving and taking ceremony was observed and also she has not able to state why the deed of acknowledgement was executed by the adoptive parents 47 years after the adoption. The application to recall/set aside the compromise decree was filed at a belated stage i.e. 15 years after the decree was passed as such the application is liable to be rejected.

The court below on the above pleadings formulated four points to determine the issues whether the petition to recall/set aside the judgment and decree is maintainable, whether the judgment and decree obtained by fraud, whether the petitioner is not the natural born or adopted daughter of Sashirekha and Nilamani and has got no locus standi to file the case and whether the claim is barred by limitation or not? The opposite party examined five witnesses including herself, her natural father and mother and filed the documents which were marked as Exts. 1 to 8. The present petitioner ha