Learned counsel appearing for the opposite party submitted that the opposite party being the adopted daughter she has mutated the property in her name and alienated the same in the year 2007. He further submitted that since the adoptive mother has not disclosed that she has any knowledge about filing of the suit against her in respect of the suit property and same was compromised rightly after her death opposite party No. 1 has filed the application to set aside the compromise. The court below taking into consideration the facts and circumstances of the case has allowed the application. In support of his contention he has cited the decision reported in MANU/SC/0152/1993 : AIR 1993 SC 1139, Banwari Lal V. Smt. Chando Devi (through L.R.) and another.
7. The facts discussed in the above paragraphs clearly reveals that the applicant filed the application to recall the compromise entered into in the suit is stranger to the said compromise. She has no personal knowledge regarding the compromise and its terms and conditions. The application to recall the compromise was filed 15 years after the compromise was entered into that too after the death of the defendant, the recorded tenant.
8. The recall petition was filed under the provision of under Order, 23 of the Code of Civil Procedure. The said prescribed procedure was confined the parties to the suit not to the legal heirs. In the case of Smt. Suraj Kumari (supra) the Court has held that Order, 23 Rule 3-A of the C.P.C. is not applicable to a stranger to the compromise decree. A suit by stranger to set aside the compromise decree, which affects his rights is not barred by the aforesaid provision. The provision makes it clear that the party to the suit is debarred from filing the suit for setting aside the compromise decree on the ground of being unlawful. A remedy available to such a party only by moving the appropriate application before the court concerned which has passed the compromise decree to appreciate the contention whether the compromise is lawful or the decree was obtained fraudulently, only remedy available is to file a suit revoking the said compromise.
Equivalent Citation: 2015(I)ILR-CUT518,AIR 2015(NOC)748 Orissa
IN THE HIGH COURT OF ORISSA
W.P.(C) No. 592 of 2012
Decided On: 28.01.2015
Banita Choudhury Vs. Subrata Pati
Hon'ble Judges/Coram:Sanju Panda, J.
Citation;AIR 2015(NOC)748 Orissa
1. Petitioner in this application has challenged the order dated 16.12.2011 passed by learned Civil Judge (Sr.Divn.) 1st Court, Cuttack in Interim Application No. 324 of 2007 recalling the judgment and decree passed on 17.8.1992 and 27.8.1992 respectively in T.S. No. 320 of 1992. The facts leading to the present case as narrated in the application are as follows:-
The present petitioner filed T.S. No. 320 of 1992. The said suit was decreed on compromise on 17.8.1992. The plaintiff in the said suit pleaded that the suit property was purchased by her father on 1.1.1969 for a consideration of Rs. 50/- from one Sashirekha and was in possession of the same. As there is no record of such transfer of land and the purchaser was in possession of the property from the date of purchase after him his daughter was in possession. The daughter has filed the suit claiming of her right over the property impleading the owner of the property Sashirekha as defendant. A decree was passed in the suit on compromise. The defendant has accepted the averment made in the plaint. After the suit was disposed of the decree was drawn up.
2. While the matter stood thus the present petitioner filed C.S. No. 243 of 2007 against one Madhusmita for permanent injunction as she has disturbed the possession of the petitioner over the suit property. In the said suit the petitioner has pleaded that the factum of earlier suit which was ended on compromise in support of her claim. After receiving notice by the defendant in the said suit the present opposite party came to know about the earlier T.S. No. 320 of 1992. She is the vendor of aforesaid Madhusmita who was the defendant.
3. The opposite party thereafter enquired into the matter and filed Interim Application No. 324 of 2007 to set aside the compromise decree taking a plea that she is the adopted daughter of Sashirekha who has purchased the property on 19.2.1964. After purchase she remained in peaceful possession of the same. Sashirekha and her husband Nilamani lost two daughters at an early stage for which they decided to adopt her as she is the daughter of Nilamani's sister. After their death the opposite party performed the funeral ceremony. Sashirekha died on 31.7.2004. After death of Sashirekha the opposite party being the successor has alienated the property in favour of Madhusmita Gochhi by registered sale deed dated 5.2.2007. The purchaser is in possession of the property. On the above pleadings she has seeking the relief to set aside the compromise decree dated 17.8.1992 and also the decree passed in T.S. No. 320 of 1992. She has disputed that Sashirekha has not appeared and filed Vakalatnama in the said suit which was fraudulently obtained and the compromise decree is not binding on her.
4. The present petitioner contested the said proceeding traversing the allegation made by the opposite party and contended that the opposite party has averred that she was adopted when she was only five days old. However when she was aged about 7 to 8 years in the year 1960 the giving and taking ceremony was observed and also she has not able to state why the deed of acknowledgement was executed by the adoptive parents 47 years after the adoption. The application to recall/set aside the compromise decree was filed at a belated stage i.e. 15 years after the decree was passed as such the application is liable to be rejected.
The court below on the above pleadings formulated four points to determine the issues whether the petition to recall/set aside the judgment and decree is maintainable, whether the judgment and decree obtained by fraud, whether the petitioner is not the natural born or adopted daughter of Sashirekha and Nilamani and has got no locus standi to file the case and whether the claim is barred by limitation or not? The opposite party examined five witnesses including herself, her natural father and mother and filed the documents which were marked as Exts. 1 to 8. The present petitioner has examined herself as witness. However she has not filed any documentary evidence. The court below on analyzing the materials available on record came to a conclusion that the compromise was effected in a clandestine manner and the order sheet shows that the parties are absent and their respective counsel had also not signed on the record. The aforesaid finding based on the acknowledgement deed of adoption executed in the year 1999 though the signatures of Sashirekha and Nilamani were disputed in the said deed. Further without answering the points formulated the court below came to a finding that the O.P.W claimed that she has purchased the suit land which was completely different from the plaint averment therefore the Interim Application is maintainable at the instance of the adoptive daughter. Whether the adoption is valid or not is of little consequence. With the above finding the trial court has allowed the Interim Application and set aside the compromise decree.
5. Learned counsel appearing for the petitioner submitted that when the opposite party has taken a plea of adoption without proving the said adoption as valid one and in absence of any materials whatsoever regarding valid adoption of the opposite party, the court below should not have set aside the compromise decree passed 15 years back. He further submitted that the party to the compromise died in the year 2004, an application was filed in 2007 to set aside the compromise decree by a person who is not a party to the compromise the court below should have rejected the application as the adoption of the said person was under dispute. In support of his contention he has cited the decisions reported in 2012(1) CLR (SC) 431, Holir V. Keshav and another, MANU/UP/0018/1991 : AIR 1991 Allahabad 75, Smt. Suraj Kumari V. District Judge, Mirzapur and others.
6. Learned counsel appearing for the opposite party submitted that the opposite party being the adopted daughter she has mutated the property in her name and alienated the same in the year 2007. He further submitted that since the adoptive mother has not disclosed that she has any knowledge about filing of the suit against her in respect of the suit property and same was compromised rightly after her death opposite party No. 1 has filed the application to set aside the compromise. The court below taking into consideration the facts and circumstances of the case has allowed the application. In support of his contention he has cited the decision reported in MANU/SC/0152/1993 : AIR 1993 SC 1139, Banwari Lal V. Smt. Chando Devi (through L.R.) and another.
7. The facts discussed in the above paragraphs clearly reveals that the applicant filed the application to recall the compromise entered into in the suit is stranger to the said compromise. She has no personal knowledge regarding the compromise and its terms and conditions. The application to recall the compromise was filed 15 years after the compromise was entered into that too after the death of the defendant, the recorded tenant.
8. The recall petition was filed under the provision of under Order, 23 of the Code of Civil Procedure. The said prescribed procedure was confined the parties to the suit not to the legal heirs. In the case of Smt. Suraj Kumari (supra) the Court has held that Order, 23 Rule 3-A of the C.P.C. is not applicable to a stranger to the compromise decree. A suit by stranger to set aside the compromise decree, which affects his rights is not barred by the aforesaid provision. The provision makes it clear that the party to the suit is debarred from filing the suit for setting aside the compromise decree on the ground of being unlawful. A remedy available to such a party only by moving the appropriate application before the court concerned which has passed the compromise decree to appreciate the contention whether the compromise is lawful or the decree was obtained fraudulently, only remedy available is to file a suit revoking the said compromise.
9. The Apex Court in the case of Holir (supra) while considering the provision under Order, 23 Rule, 3-A of the C.P.C. distinguished the case of Banwari Lal V. Chando Devi (supra) held that under Section 9 of the C.P.C. the Civil Court has inherent jurisdiction to try all type of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. Nothing in Order, 23 Rule, 3-A to bar the institution of a suit before the Civil Court even in regard to decree or order passed in suits and/or proceedings under the different statutes before a court, tribunal or authority of limited and restricted jurisdiction. In view of the above settled position the court below should not have entertained an application recalling the compromise decree entered into 15 years back that too after the death of the defendant. Accordingly this Court sets aside the impugned order dated 16.12.2011 passed by learned Civil Judge (Sr.Divn.) 1st Court, Cuttack in Interim Application No. 324 of 2007 arising out of T.S. No. 320 of 1992 in exercising the jurisdiction under Article 227 of the Constitution of India. However in the facts and circumstances without costs. Since the parties have already filed a suit for declaration/eviction, it is open to the parties to contest the said suit which shall be disposed of on its own merit. Accordingly the writ petition is disposed of.
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