A compromise decree is an "instrument" within the meaning of Article 91 of the Limitation Act, 1908, as it is a document that affects rights and liabilities and is based on an agreement between the parties.

Amitav Banerji, J.

In this appeal by the Plaintiffs two questions of law have been raised. Firstly, whether Article 91 or Article 95 of the Limitation Act, 1908 will apply and, secondly, whether a "decree" is an "instrument" within the meaning of Article 91 of the Limitation Act, 1908.

2. Plaintiffs filed a suit for cancellation of the compromise decree passed in Suit No. 30 of 1955, Hari Kunwar Rai and Ors. v. Lochan Rai and Ors. of the Court of City Munsif, Azamgarh in respect of matters which were not covered by that suit. Plaintiffs' case was that the compromise was the result of fraud and in any event since it involved matters extraneous to the suit, it could have no effect on the pa ties. Moreover, the compromise signed by Sri Ram Singar Rai was beyond his competence as he could not act in respect of the properties other than those involved in the suit. The defence was a denial of the plaint allegations and an assertion that the compromise was validly arrived at and was binding on the parties. It settled the disputes between the parties and Shri Ram Singar Rai was competent to verify the compromise on behalf of the Plaintiffs. The trial court framed two issues and negatived the plea of the Plaintiffs both on the question of fraud and the validity of the compromise decree. Plaintiffs suit was dismissed. On appeal the lower appellate court held that the compromise decree was neither null nor void on the grounds taken in the plaint. A fresh point was taken as to whether the suit was within time. The lower appellate court framed an issue on the point and remitted it to the trial court. The trial court by its decision dated 30th of July 1965 held that the Plaintiffs' suit was barred by time. This finding of the trial court was affirmed by the lower appellate court. The appeal was dismissed.

3. In this appeal, learned Counsel has not addressed any argument, on the question whether the compromise decree was null and void and I think rightly for the finding given by the lower appellate court is unexceptionable. On the question of limitation, however, learned Counsel has raised two questions, as stated earlier.

4. Learned Counsel for the Appellants contended that Article 91 of the Limitation Act, 1908 (hereinafter referred to as the 'Act') would have no application and Article 95 would be applicable. In the alternative it was argued that even if Article 91 applied, the starting point would be when the Plaintiff's Knew of the compromise decree. It was contended that the Plaintiffs had knowledge of the compromise decree in October, 1961 and the suit filed on the 10th of March, 1962 was well within time. The contention of the learned Counsel for the Respondents was that Article 95 had no application for it applied only to a decree obtained by fraud or for other relief on the ground of fraud. The finding of the court below is that the compromise decree was not obtained by fraud. Consequently, Article 95 of the Act would have no application. The view taken by the court below in this regard is perfectly correct.

The alternative arguments may now be considered. Article 91 of the Act reads as follows:

5. It would be evident that this Article would apply where the relief sought was to cancel or set aside an instrument not otherwise provided for. Admittedly, there is no other provision in the Limitation Act, 1908 for the cancellation or setting aside of a decree or instrument. Consequently, this Article would have application. Learned Counsel contended that this will establish that this Article applies to suits in which it is sought to cancel or set aside an instrument which is voidable and has no application where the instrument