JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 6.1.2016 passed by the learned Additional Civil Judge (Sr. Division), Balasore in Execution Case No.3 of 2011. By the said order, the learned executing court allowed the application filed by the D. Hr and held that the compromise entered into between the parties is unlawful.

2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it say that opposite party no.1 as plaintiff instituted Execution Case No.3 of 2011 for partition impleading the petitioner as well as opposite parties 2 to 9 as defendants. The petitioner was defendant no.2 in the suit. The suit was decreed preliminarily on 4.5.2011. The final decree is drawn up on 21.4.2011. Thereafter, D.Hr. levied Execution Case No.3 of 2011. While the matter stood thus, the D. Hr. and J. Dr. no.2 had filed a joint compromise petition on 17.8.2015 in the execution petition to allot a house situate over the suit plot in favour of J. Dr. no.2 since the same was all along in possession of J.Dr.no.2. On 11.12.2015, the D. Hr. and J. Dr. were present in the court. They admitted the compromise to be correct. The learned executing court held that the compromise is lawful and, accordingly, the same was accepted. The execution case was disposed of in terms of the compromise. While the matter stood thus, D. Hr. filed an application on 11.12.2015 to recall the said order. It is stated that taking advantage of the old age of the D. Hr. and his mental condition, J. Dr no.2 managed to take signature from him in some blank papers. The D. Hr. had not put any signature in the compromise petition. He was not mentally fit. The contents of the compromise petition were not read over and explained to him. Further, Order 23 Rule 3 is not applicable in the execution proceeding. The decree having not been registered is unlawful. J. Dr. filed objection. The learned trial court came to hold that on 11.12.2015 both parties were present in the court. The contents of the compromise petition were read over and explained to them. It negatived the plea of D. Hr. that compromise was not within his knowledge. The executing court cannot go behind the decree. In view of the embargo under Rule 4 of Order 23 C.P.C. the compromise cannot be entertained. The contents of compromise are compulsorily registrable. Held so, it allowed the petition of the D. Hr.

3. Mr. B. Baug, learned Advocate for the petitioner submitted that during pendency of the execution case, compromise was arrived at between the D. Hr. and J. Dr. no.2. The compromise petition was filed in the court to allot a house, where J.Dr.no.2 resides with his family. On 11.12.2015 the parties were present in the court. The compromise petition was read over and explained to them. They admitted in the court about the same. The court on being satisfied that the compromise was lawful recoded the same. On untenable and unsupportable grounds, the D. Hr. filed an application to recall the same. He relied on the decisions of the apex Court in the case of N.K. Rajgarhia Vs. Mahavir Plantation Ltd. and others, 2006 (1) CLR(SC) 152 and Bhoop Singh Vs. Ram Singh Major and others, AIR 1996 SC 196.

4. Per contra, Mr. P.K. Lenka, learned Advocate for opposite party no.1 submitted that the D. Hr. is an old man. He was not in a fit state of mind. Taking advantage of the old age, J. Dr. no.2 took the signature of D. Hr. in some blank paper and utilized the same. He further contended that Order 23 Rule 4 C.P.C. is a bar to enter into a compromise in an execution case. Further the decree requires registration. The same was not done. The learned executing court rightly allowed the petition.

5. In Lakshmi Narayanan Vs. S.S. Pandian, AIR 2000 SC 2759, the appellant was the owner of premises. The respondent was a tenant. The appellant filed an eviction petition for eviction of the respondent. The same was decreed ex parte. Thereafter the appellant levied executio