ORAL ORDER

The LRs. of defendant No.7 have filed the present Writ Petition questioning the orders dated 26.04.2019, 06.06.2019 and 25.06.2019 passed in O.S. No.146/2005.

2. The respondents herein had filed suit for partition.

Defendant No.7 had purchased the property from defendant No.1. When the suit was compromised between the plaintiffs and other defendants, without considering the rights of defendant No.7, an appeal was preferred against the preliminary decree. While Regular Appeal was pending before the Appellate Court, the decree holders have filed the petition seeking amendment wherein it is stated in the compromise petition that the boundaries are not mentioned. Initially, the petitioner herein had filed an application to stay the Final Decree Proceedings and that application came to be dismissed. Thereafter, the Court had allowed the application filed under Order VI Rule 17 of CPC. The Court has observed vide order dated 26.04.2019 that - 'perused, none of them have filed objections to IA. Without boundaries, the FDP cannot be executed. Hence, the IA is allowed. Permitted to carry out amendment in the compromise petition'. Thereafter, on 06.06.2019, it was held that - 'the amendment was carried out and amended petition is filed'. On 25.06.2019, the Court has observed that - 'case is taken on board. Memo is filed. In view of memo, the amended petition filed on 06.06.2019 is withdrawn. Fresh amendment petition is filed'.

3. The facts of the case are that respondents herein had filed a suit for partition and in that the 7^th defendant had purchased the property from defendant No.1. In that, a compromise decree was passed vide judgment and decree dated 19.10.2016. As the rights of the 7^th defendant were affected, he filed Regular Appeal. Pending Regular Appeal, the plaintiff and other family members have filed an application seeking amendment that in the compromise petition, the boundaries were not mentioned. Initially, amendment was allowed. Thereafter, they have filed another petition to withdraw the amended petition and to file another petition. The amended petition was allowed and thereafter, when the amended petition was withdrawn, another amended petition was filed and the Court by an order dated 25.06.2019, had permitted the parties to withdraw the petition filed on 06.06.2019. Questioning those orders, the 7^th defendant is before this Court.

4. Learned counsel appearing for the petitioners submits that the Court without even looking at the fact that the interest of the 7^th defendant is affected, by virtue of a compromise which is entered into between the parties, had allowed the compromise and allowing such compromise petition is bad in law. Further, when once a compromise decree is passed, that is questioned in the appeal without any notice to him, filing the petition seeking amendment of the said judgment and decree and further, again withdrawing the amended petition and filing another petition are not permitted under law and the Court ought not to have entertained the same. Learned counsel relied on the Judgment of the Apex Court in the case of Ajanta LLP vs. Casio Keisanki Kabushiki Kaisha D/B/A Casio Computer Company Limited and another¹. Particularly on paragraph Nos.21, 22, 23 and 24, wherein it is observed that -

"21. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn-out fight. A compromise decree creates an estoppel by judgment. It is relevant to note that in Byram Pestonji Gariwala, this Court held that the appellant therein did not raise any doubt as to the validity or genuineness of the compromise nor was a case made out by him to show that the decree was vitiated by fraud or misrepresentation, While stating so, this Court dismissed the appeal

22. A consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. The Court in exercise of