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HIGH COURT OF BOMBAY
SHRIKRISHNA LAXMAN CHAUDHARI – Appellant
Versus
CHITRAREKHA BALMUKUND CHAUDHARI THROUGH HER POWER OF ATTORNEY HOLDER AND ANOTHER – Respondent
WP 711/2022
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 711 OF 2022
Shrikrishna Laxman Chaudhari
PETITIONER
VERSUS
Chitrarekha Balmukund Chaudhari and Another RESPONDENTS
.......
Mr. R. S. Deshmukh, senior advocate i/b Mr. Rahul P. Dhase,
Advocate for the petitioner
.......
[CORAM : NITIN B. SURYAWANSHI, J.]
DATE : 1
st FEBRUARY, 2022
ORDER :
1.
This petition, filed under Article 227 of the Constitution of
India, challenges order dated 12th August,. 2021 passed by the
learned Second Joint Civil Judge, Senior Division, Jalgaon below
Exhibit-63 in Special Civil Suit No. 71 of 2013 thereby rejecting
the application filed by the petitioner.
2.
Open N. A. Plot No. 30, admeasuring 278.71 square meter
situated in Pimprala Shivar within the limits of Jalgaon Municipal
Corporation (for short “the suit plot”) was originally owned by
Shantabai Laxman Khadke. Shantabai expired issue-less on 1st
January, 2006. Her sister in law, Rukminibai Laxman Kale
succeeded the suit plot. Name of Rukminibai was entered into
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revenue record in respect of the suit plot. On 25th July, 2006,
Rukminibai entered into an agreement to sale of the suit plot
with the petitioner. Rukminibai expired on 14th September, 2007.
Respondent No.2 is the son of deceased Rukiminibai.
3.
The petitioner filed Special Civil Suit No. 131 of 2009
against respondent No.2, seeking specific performance of
contract entered into between the petitioner and Rukminibai. The
matter was settled before the Lok Adalat on 16th September,
2012 and in terms of the settlement, award was passed by the
Lok Adalat on the same day. Pursuant to the Award, sale deed of
the suit plot was executed by respondent No.2 in favour of the
petitioner.
4.
In view of the said sale deed, name of the petitioner was
recorded in the revenue record of the suit plot.
5.
Respondent No.1 filed Special Civil Suit No. 71 of 2013
against the petitioner and respondent No. 2 for setting aside
compromise decree passed in Special Civil Suit No. 131 of 2009,
claiming that the same was obtained by fraud and staking her
claim to the suit plot on the basis of Will executed in her favour,
by original owner Shantabai.
6.
In this suit, the petitioner filed application Exhibit-63
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seeking dismissal of the suit contending that the suit for
declaration to set aside compromise decree is barred by Rule 3-A
of Order XXIII of the Civil Procedure Code (for short “CPC”). Said
application came to be rejected by the trial court by order dated
12th August, 2021. This order is impugned in the present writ
petition.
7.
Mr. R. S. Deshmukh, learned senior advocate for the
petitioner strenuously submitted that in the light of the decision
in “Triloki Nath Singh V/s Anirudh Singh” AIR ONLINE 2020 SC
491, the suit filed by respondent No.1 challenging compromise
decree is not maintainable, since order XXIII, Rule 3-A of the
CPC bars such suit.
8.
Admittedly, in Special Civil Suit No. 131 of 2009, it was the
contention of the parties therein that mother of respondent No.2
was owner of the suit plot and she had executed agreement to
sale in favour of the petitioner. Respondent No.1, who has filed
Special Civil Suit No. 71 of 2013, was not a party to the said suit
or to the compromise. Respondent No.1 is praying for setting
aside the compromise decree on the ground of fraud. She is also
staking her claim to the suit plot on the basis of the Will
executed by the original owner of the suit plot.
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9.
This Court in “Razia Sultana K Ahmed V/s Abdul Rashid
Abdul Rehman Yusuf”, 2021 (3) ABR 831 and “Ramkrishna
Shridhar Choube & Others V/s Court Receiver and Others”, 2011
(2) Mh.L.J. 473, has held that provisions of Rules 3 and 3-A of
Order XXIII of the CPC are not meant for third party and third
parties can approach the court in their own right and seek an
appr
