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IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.1700 of 2014

Pramila Dhir Samanta & Ors.

….

Petitioner(s)

Mr. S.K. Mishra,

Advocate

-versus-

Nirakar Dhir

….

Opposite Party(s)

None

CORAM:

JUSTICE BISWANATH RATH

Order No.

ORDER

30.03.2022

11.

1.

Heard Mr. S.K. Mishra, learned counsel for Petitioners. In

spite of appearance of a set of counsel on behalf of the Opposite

Party, nobody appears at the time of call. This matter is, therefore,

decided only hearing the Petitioners.

2.

Dispute involved in this matter relates to rejection of an

application vide Misc. Case No.795 of 1994 by the learned Civil

Judge (Sr. Divn.), BBSR purportedly filed U/s.151 of C.P.C.

requesting the trial court for setting aside the compromise decree

dated 9.02.1982 involving O.S. No.296 of 1981(I).

3.

Short background involved in this case is that the present

Opposite Party instituted O.S. No.296 of 1981(I) praying therein for

a decree of partition of the Scheduled ‘A’ property and

consequential relief therein. It is alleged that in the initial stage the

mother, sister though were made parties to the suit for partition, but

subsequently except the predecessor of the Petitioners other

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defendants were expunged vide order dated 9.02.1982. The suit

appears to have been ended with compromise decree passed between

the Opposite Parties and the predecessors of the Petitioners. The

Petitioners claiming to have come to know about the fraud

committed in obtaining a compromise decree on 17.08.1994, filed a

petition U/s.151 of C.P.C. numbered as Misc. Case No.795 of 1994

thereby requesting the trial court to set aside the compromise decree

on the ground of fraud.

Considering such application the trial court entering into

hearing of the parties and on examination of the documents taken

support by the Petitioner No.1 therein-Padmanava Dhir Samanta by

its order dated 18.02.2014 came to reject the application.

4.

Assailing the impugned order Mr. Mishra, learned counsel

for Petitioners taking this Court to the application U/s.151 of C.P.C.

and the grounds therein contended that the application U/s.151 came

to be filed on two premises; one is that Padmanava Dhir Samanta

was mentally suffering till 12.10.1992 and came to file the

application vide Misc. Case No.795 of 1994 on 19.12.1994 only

after coming to know about existence of such decree on 19.12.1994

itself and the second ground in bringing the misc. case is that there is

fraud practiced between the parties entering into the compromise

decree. Taking this Court to the grounds in the petition Mr. Mishra,

learned counsel for Petitioners contended that Padmanava Dhir

Samanta was suffering on account of mental ailment, accordingly

drawing attention of this Court to the Exts.2 & 3 attempted to satisfy

the Court that the Padmanava Dhir Samanta was suffering till

12.10.1992 and since it has come to know about existence of fraud

involving compromise decree on 19.12.1994, it had no other option

than to bring Misc. Case No.795 of 1994. More specifically reading

through the averments in paragraph no.8 of the petition involved, an

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attempt is also made by Mr. Mishra, learned counsel for Petitioner to

establish that the Petitioner No.1 therein Padmanava Dhir Samanta

was incapable and further there has been obtaining of a compromise

decree behind back of the Petitioner No.1 i.e. Padmanava Dhir

Samanta. Further the Petitioner No.1 Padmanava Dhir Samanta

could be able to establish that he was not available for the purpose of

brining the application earlier and it is alleged that the trial court

failed to appreciate such aspect.

It is, in the above premises Mr. Mishra, learned counsel for

Petitioners attempted to establish his case through Misc. Case

No.795 of 1994.

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