S.K. Gangele, J.

1. The appellants-defendants have filed this Second Appeal under Section 100 of C.P.C., against the judgment and decree dated 10-05-2001, passed by the Additional District Judge, Karera, District Shivpuri in Civil Appeal No. 107-A/1995, whereby affirming the judgment and decree dated 13-10-1995 passed in Civil Suit No. 48-A/1994. This Second Appeal was admitted for hearing vide order dated 10-10-2001 on the following substantial question of law:

i) Whether the suit giving rise to this appeal was not maintainable in view of the Bar contained in Order 23 Rule 3-A of the Code of Civil Procedure ?

2. The respondents No. 1 to 3-plaintiffs filed a suit for declaration of decree dated 7-7-1980 passed in Civil Suit No. 393-A/1980 as null and void and further sought a declaration that they are the owner of the suit land. They pleaded that the defendants filed a suit on 7-7-1980 against the plaintiffs and on the date of institution of the aforesaid suit the plaintiff-Amarchand and defendants No. 1 & 2 were minor. The suit was instituted fraudulently and on the same day, on the basis of compromise a decree was obtained, however, the plaintiffs did not submit any compromise application in the suit, neither they appeared before the court in the proceedings of Civil Suit No. 393-A/1980. The defendants played a fraud and obtained the decree. The plaintiffs came to know about the decree on 4-8-1985.

3. The defendants in their written statement denied the pleadings of the plaintiffs. They pleaded that a suit was instituted before the civil court on 7-7-1980 and on the same day the plaintiffs appeared before the court and submitted a compromise. On the basis of aforesaid compromise, the trial court passed a decree on the same day i.e on 7-7-1980 and declared that the defendants are the owner of the suit land. Thereafter the name of the defendants had also been mutated in the revenue record. The plaintiffs had knowledge about the judgment and decree.

4. The trial court after appreciation of evidence on record of the case decreed the suit of the plaintiffs-respondents No. 1 to 3 and thereafter the decree has been upheld by the appellate court also.

5. Learned Senior Counsel for the appellants has contended that the suit filed by the plaintiffs for declaring the decree and judgment passed in Civil Suit No. 393-A/1980 void was not maintainable in view of the order 23 Rule 3-A of the Civil Procedure Code. In support of his contentions learned Senior Counsel relied on the following judgments:

i) AIR 2007 (NOC) 841 (M.P) (Bhanwarlal Bherulal and Ors. v. Devilal Keshuram Kumawat and Ors.);

(ii) 2007 (2) MPHT 228 (DB) (Brajesh Kumar Awasthi and Anr. v. State of M.P. and Ors.)';

(iii) 2009 (3) MPLJ 168 (Tijauwa and Ors v. Rajmani and Anr.);

(iv) AIR 1981 Bom. 357;

(v) AIR 1982 Cal. 12;

(vi) AIR 1983 Cal. 180;

(vii) AIR 1985 Kart. 270;

(viii) AIR 1991 Bom. 185;

(ix) AIR 1992 Pat. 153;

(x) 1995 (2) AIHC 1348 (DB);

(xi) 1995 (4) AIHC 3270 (DB);

(xii) 1996 AIHC 3184;

(xiii) AIR 2003 Kart. 407 (DB) ; and

(xiv) AIR 2004 Raj. 264 (DB).

6. Contrary to this, learned Counsel for the respondents-plaintiffs has submitted that the judgment and decree passed by the trial court in Civil Suit No. 393-A/1980 was void. The mandatory provisions for recording compromise on behalf of the minor were not followed by the court. Hence, the suit filed by the respondents-plaintiffs was maintainable and the provisions of Order 23 Rule 3-A of the C.P.C. would not create a bar in instituting a suit.

7. The defendants Santosh Kumar and Ashok Kumar filed a suit for declaration before the trial court. In the aforesaid suit Hachchu, Suttu, Bhaggu and Amarchand were added as defendants and the age of Amarchand was mentioned as 7 years and his uncle Bhaggu, S/o Baldev was guardian of the defendant No. 4. The plaint was filed through guardian Balkirishna because plaintiffs- Santosh Kumar and Ashok Kumar were minor. It is said that on the same day a compromise application was filed befo