IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 07 of 2010 1. Master Sarthak S/o Sri Chandra Shekhar Verma R/o B-180, Nehru Colony, Dehradun Through his natural guardian and Mother Smt. Bhawna D/o Sri Rajesh Chandra Verma 2. Smt. Bhawna Verma D/o Sri Rajesh Chandra Verma R/o B –180, Nehru Colony, Dehradun, District Dehradun. ...…………. Appellants Versus Sri Chandra Shekhar Verma S/o Sri Panna Lal Verma R. 17 / 12 Khadri Mohalla, Dehradun, District Dehradun. ...…………. Respondent Mr. Manish Arora, Advocate, present for the appellants. Mr. Bhupesh Kandpal, Advocate, present for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against order dated 16.01.2010, passed by Principal Judge, Family Court, Dehradun, in Suit No. 52 of 2005, whereby said court has dismissed the suit holding that the suit is barred by Rule 3A of Order XXIII of the Code of Civil Procedure, 1908. 2 2) Heard learned counsel for the parties and perused the papers on record. 3) Brief facts of the case are that respondent Chandra Shekhar Verma got married to appellant No. 2 Bhawna Verma in the year 1992. Appellant No. 1 Master Sarthak born out of the wedlock in the year 1993. However, thereafter relations between the parties to matrimony soured, and respondent Chandra Shekhar Verma filed a petition under Section 13 of the Hindu Marriage Act, 1955, which was registered as Original Suit No. 727 of 1995, and a compromise decree was passed on 1st of February 1996, whereby the decree of divorce was passed in terms of the compromise entered into between the parties. In one of the terms, appellant No. 2 Bhawna Verma agreed to accept ` 15,000/- as maintenance for herself, and son Master Sarthak living with her. The present Suit No. 52 of 2005, was filed by Master Sarthak and his mother Bhawna Verma claiming maintenance under Section 20 of the Hindu Adoption and Maintenance Act, 1956, in which the respondent Chandra Shekhar Verma took a plea that the suit is barred under Rule 3A of Order XXIII of Code of Civil Procedure, 1908. On the basis of said plea one of the issues i.e. issue No. 4 was framed by the trial court, and after hearing the parties, it was held that the suit is not maintainable. 4) Rule 3A of Order XXIII of the Code provides that no suit shall lie to set aside a decree on the ground 3 that the compromise on which decree is based was not lawful. The bar under Rule 3A does not apply to the third party. Admittedly, Master Sarthak was not a party in the Suit No. 727 of 1995, in which the decree was passed in terms of the compromise. Had Master Sarthak been a party in the Suit No. 727 of 1995, through her mother Bhawna Verma, what the trial court has held as against him could have been upheld. The compromise decree is binding only on the parties to the suit. 5) Therefore, so far as the impugned order relates to appellant No. 2 Bhawna Verma, same requires no interference, as she was a party to the compromise decree, passed in Suit No. 727 of 1995, by III Addl. Civil Judge (Senior Division), Dehradun. But, the impugned order is erroneous in law so far as it deprives the appellant No. 1 Master Sarthak from claiming maintenance as he was not party to the suit in which his mother entered into compromise with his father. His right under Section 20 of the Hindu Adoption and Maintenance Act, 1956, is his independent right. Even under Section 115 of the Indian Evidence Act, 1872, in the above facts and circumstances of the case, it cannot be said that Master Sarthak is not entitled on the basis of principle of estoppel from claiming the maintenance. 6) Therefore, this appeal is partly allowed. The impugned order dated 16.01.2010, passed on Application 62-A, and finding on issue No. 4 is upheld 4 only as against the appellant No. 2 Bhawna Verma. But the same is set aside so far as it relates to appellant No. 1 Master Sarthak. As such, the Suit No. 52 of 2005, pending before the Principal Judge, Family Court, Dehradun, may proceed further on behalf of appellant No. 1 Master Sarthak, and the same may be decided on merits after the evidence is adduced by the parties. No order as to costs. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) Dt. June 23, 2011. H. Negi 5