This appeal is filed by the appellant under Section 96

of CPC for setting aside the order passed by Trial Court in

O.S.No.134/2020 dated 19.04.2023.dismissing the suit on

the preliminary issue No.3.

2. Heard learned counsel for the appellant and

learned counsel for the respondents.

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For the sake of convenience, the parties in this

appeal shall be referred to, in terms of their status and

ranking before the Trial Court. The appellant was plaintiff

and the respondents were defendants before the Trial

Court.

4. The case of the plaintiff before Trial Court is that,

the plaintiff filed suit, seeking the relief of declaration,

that the compromise decree for the partition dated

10.01.1991 in O.S.No.1570/1990, on the file of the

Principal Munsiff, Mangaluru, is null and void and not

binding on the plaintiff. Further sought relief for partition

of the schedule properties into 36 equal shares and to allot

12 equal shares to the plaintiff, out of 36 equal shares and

also for the future mesne profits.

5. The defendants appeared and filed the written

statement before the Trial Court, by taking various

contentions and also the contention that the 'Will' was

executed by the father in the name of Edward Saldhana

and Valentine Saldhana. The suit was filed by the Edward

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Saldhana who is the husband of the defendant No.1 and

the father of the defendant Nos.2 and 3 filed the suit in

O.S.No.1570/1990, which was compromised only between

Edward Saldhana (husband of defendant No.1 and father

of defendant Nos.1 and 2 ) and Valentine Saldhana (the

father of defendant Nos.4 to 7). The compromise decree

was passed on 10.01.1991. Therefore, they raised

objection, that the independent suit is not maintainable

and the plaintiff is required to file the application before

the same court, in view of the bar under Order 23 and

Rule 3A of CPC. The Trial Court based upon the pleading,

framed 7 issues. The issue No.3 was considered as

preliminary issue, which is referred as under:-

"ISSUE NO.3.

"Whether this Court has jurisdiction to

declare that the compromise Decree dated

10.01.1991 in O.S.No.1570/1990 on the file

of Principal Munsiff, Mangalore is null and

void?"

6. After hearing the arguments the Trial Court

answered the Issue No.3, in the affirmative, in favour of

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the defendants. The suit came to be dismissed, as not

maintainable and directed the plaintiffs to challenge the

same, by filing application before the same court, under

Order 23 Rule 3A of CPC vide impugned judgment. The

same is challenged before this court by the plaintiff.

7. Learned counsel for the plaintiff has strenuously

contended, that the order passed by the Trial Court on

preliminary issue is not correct, illegal and perverse, as

the appellant was not at all party to the suit in

O.S.No.1570/1990 and that the 'Will' was alleged to be

executed by her father. After filing suit for partition, the

suit was compromised between parties and the decree was

obtained by the parties. The plaintiff was not at all party

to the suit in O.S.No.1570/1990, therefore judgment and

compromise decree was not binding on the plaintiff. The

plaintiff is entitled for the share in the property of the

father. Therefore, independent suit is maintainable.

Hence prayed for allowing the appeal. Further, learned

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counsel for the appellant, relied upon the judgment of the

co-ordinate bench of this court in ILR 2021 KAR 338.

8. Per contra, learned counsel for respondents, has

strenuously objected and contended that, whether the

appellant/plaintiff was party or stranger, she cannot file

separate suit for setting aside the compromise decree, as

not binding, without challenging the decree. The clever

drafting of 'not binding' is not maintainable. Further

submits, the Hon'ble Supreme Court has categorically

stated, in the case reported in 2020 6 (SC) 629 in case

of Trilokinath Singh Vs Anirudh Singh (D) through

Lrs, that even if plaintiff is stranger, he cann