The main legal point established is that a suit to challenge a compromise decree is not maintainable under Order 23 Rule 3-A of the Code of Civil Procedure, and the remedy for challenging such a decree is restricted to approaching the same court that recorded the compromise.

Permod Kohli, J.

1. I have heard the learned Counsel for the parties at length.

2. Notice of motion in this case was issued on 05.05.2006. On 04.02.2008 when this appeal came up for consideration, a question arose regarding the maintainability of the suit filed by the plaintiffs-respondents in view of the provisions of Order 23 Rule 3-A of the Code of Civil Procedure. Learned Counsel for the respondents sought time; to examine this issue on the following question:

Whether the suit filed by the respondents challenging the compromise decree dated 25.10.1994 passed in Civil Suit No. 647 dated 07.04.1997, is maintainable in view of the specific provisions under Order 23 Rule 3-A of the Code of Civil Procedure?

3. It is admitted case of the parties that the plaintiffs-respondents filed the suit for declaration challenging the judgment and decree dated 25.10.1994 referred to above. The allegations contained in the plaint are that the decree is a result of fraud committed by the defendant by way of impersonation and misrepresentation and is illegal, null and void, collusive and ineffective. Mutation No. 3676 entered on the basis of the aforesaid decree has also been challenged. The aforesaid decree came to be passed on the basis of the compromise by Bhag Singh allegedly on the basis of family settlement. The defendant also did raise a plea regarding the maintainability of the suit and the learned trial Court framed as many as 14 issues. However, the issue regarding maintainability seems to be misdirected. For the convenience issue No. 13 is reported as under:

13. Whether the suit is barred by the principles of res judicata and Order 23 Rule 3 C.P.C.? OPD

4. Both the learned Courts below have decreed the suit filed by the respondents-plaintiffs, setting aside the decree allegedly on the basis of fraud. It is also admitted case that the decree impugned was passed by the learned Sub Judge, 1st Class, Bathinda.

5. Mr. Battas, learned Counsel appearing on behalf of the plaintiff-respondents has argued that the suit does not come within the mischief of Order 23 Rule 3-A of the Code of Civil Procedure and a separate suit is maintainable. For the brevity, Rule 3-A of Order 23 of Code of Civil Procedure is reproduced as follows:

3-A. Bar to suit.- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

6. Order 23 Rule 3 of the Code of Civil Procedure empowers the Court to pass a decree on the basis of the compromise between the parties. Explanation appended to the aforesaid provisions provide that the agreement referred to under Order 23 Rule 3 of the Code of Civil Procedure must conform to the test of a valid agreement/contract as prescribed under the Contract Act. However, Sub Rule 3-A imposes a restriction on the party to the compromise decree to challenge the compromise decree by way of a separate suit-meaning thereby that the remedy of the person who may be aggrieved of the compromise decree is to approach the same Court.

7. Mr. Battas has referred to Kahsmira Singh (Died) through L.R. v. Gram Pdnchayat of village Budha Khera and Anr. (2000-3)126 P.L.R. 195, wherein the following observations have been made:

In the instant case the Gram Panchayat which was represented in R.F.A. by Roshan Lal, Panch, under resolution of the Gram Panchayat, made a statement before the learned Single Judge of this Court who acted on the compromise deed and passed the order which is sought to be recalled in this application under Section 151 CPC. This action of Roshan Lal, Panch alleged to be vitiated by fraud, undue influence etc. cannot be said to be void ab initio but the same is only voidable and the same can be avoided till it is proved to be void in the appropriate civil suit filed before a Civil Court of competent jurisdiction.

8. He has also referred to Ruby Sales and Services (P) Ltd. and Anr. v. State of Maharashtra and Ors. The question referred to in para 2 of the judgment, i