IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18389 of 2011 ====================================================== 1. Ramashankar Ojha Son Of Late Srendra Ojha Resident Of Village - Nagai, P.O. - Ramgarh, P.S.- Siswan, District- Siwan 2. Vakil Ojha Son Of Late Srendra Ojha Resident Of Village - Nagai, P.O. - Ramgarh, P.S.- Siswan, District- Siwan .... .... Petitioners Versus 1. Panmati Devi @ Most.Panpati Kuar, Wife Of Late Ramchandra Sah Resident Of Village - Rasulpur, P.S.- Rasulpur, District- Saran Presently Residents Of Village & P.O.- Ramgarh, P.S. - Siswan, District- Siwan 2. Rajeev Kumar Gupta, Son Of Late Sheoji Prasad Gupta, Resident Of Village - Rasulpur, P.S.- Rasulpur, District- Saran Presently Residents Of Village & P.O.- Ramgarh, P.S. - Siswan, District- Siwan 3. Sanjiv Gupta, Son Of Late Sheoji Prasad Gupta, Resident Of Village - Rasulpur, P.S.- Rasulpur, District- Saran Presently Residents Of Village & P.O.- Ramgarh, P.S. - Siswan, District- Siwan 4. Sanjay Kumar Gupta, Son Of Late Sheoji Prasad Gupta, Resident Of Village - Rasulpur, P.S.- Rasulpur, District- Saran Presently Residents Of Village & P.O.- Ramgarh, P.S. - Siswan, District- Siwan 5. Jayanti Gupta, Wife Of Om Prakash Gupta, Daughter Of Late Sheoji Prasad Gupta Resident Of Village - Rasulpur, P.S.- Rasulpur, District- Saran Presently Residents Of Village & P.O.- Ramgarh, P.S. - Siswan, District- Siwan 6. Ranjeeta Gupta Wife Of Rajesh Kumar Gupta, Daughter Of Late Sheoji Prasad Gupta Resident Of Village - Rasulpur, P.S.- Rasulpur, District- Saran Presently Residents Of Village & P.O.- Ramgarh, P.S. - Siswan, District- Siwan 7. Ramawati Kuar, Wife Of Late Surendra Ojha, Resident Of Village- Nagai, P.O. - Ramgarh, P.S.- Siswan. Dist. - Siwan 8. Guddu Ojha @ Narendra Ojha, Son Of Late Surendra Ojha, Resident Of Village- Nagai, P.O. - Ramgarh, P.S.- Siswan. Dist. - Siwan 9. Awadhesh Dubey @ Awadhesh Devi, Wife Of Nand Kishore Dubey, Daughter Of Late Surendra Ojha Resident Of Village - Piao, P.S. - M.H. Nagar, Dist.- Siwan .... .... Respondents 3 09-11-2011 Heard the learned counsel Mr. Rajendra Narayan on behalf of the petitioners. The petitioners have filed this application under Article 227 of the Constitution of India against the order dated 2 08.09.2011 passed by Munsif-II, Siwan, in Misc. Case No. 28 of 2004 whereby miscellaneous case has been held to be maintainable. The short facts giving rise to this application is that the ancestors of the petitioners filed the Title Suit No. 331 of 1994 for specific performance of the contract which was decreed on compromise. The husband of the respondent no.1 refused to obey the decree and, therefore, the Execution Case No.1 of 2002 was filed. Thereafter, husband of respondent no.1, namely, Ram Chandra Sah filed Title Suit No.48 of 2002. The said suit was dismissed ultimately as not maintainable. Thereafter, the present miscellaneous case has been filed by Ram Chandra Sah challenging the compromise decree. The said application is numbered as Misc. Case No.28 of 2004. During the pendency of the said miscellaneous case he died and the respondents have been substituted. The learned counsel for the petitioners submitted that the learned Court below has wrongly held that the Misc. Case No. 28 of 2004 is maintainable as only option of the respondent was to file appeal under Section 96 and in that appeal the respondents would have challenged the compromise decree in view of the provision as contained in Order 43 Rule 3 1(A) CPC. So far this question is concerned, a Division Bench of this Court in the case of Guru Charan Singh & Ors. vs Mahatm Singh & Anr. reported in 2006(3) PLJR 345 has held at paragraph nos. 8 and 9 as follows :- “8. According to proviso to Rule 3 of Order XXIII of the Code, if it is alleged by one party or denied by other that an adjustment or satisfaction has been arrived at, the Court shall decide the question and the explanation provides that an agreement or compromise which is void or voidable shall not be deemed to be lawful within the meaning of Rule 3 of Order XXIII of the Code. Rule 3A of Order XXIII of the Code provides that no suit shall lie to set aside the decree on the ground that the compromise on which the decree is based was not lawful. Dealing with the said provision, a Division Bench of this Court, to which one of us (Nagendra Rai, J.) was a party, in the case of Lagandeo Singh (supra) held that all the question with regard to compromise has to be raised where the matter is in issue and not by filing a separate suit and the remedy available to the person is to prefer an appeal under Section 96 of the Code in case a challenge is made to a decree which has been recorded on the basis of a compromise. For coming to the said conclusion, this Court has taken note of the specific provision contained under Rule 1-A Sub-rule (2) of Order XLIII of the Code. In that case, it was also held that the intention of the legislature appears to be that the entire matter with regard to compromise should be set at rest in the same very suit and the question whether the compromise is vitiated or not due to undue influence, fraud, coercion, misrepresentation 4 etc. is required to be decided in the very same suit if it is so alleged. 9. The same question was considered by the Apex Court in the case of Banwari Lal (supra). In this connection it is relevant to mention paragraph 7 of the judgment. “By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said Rule. Having introduced the proviso alongwith the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3A in respect of institution of a separate suit for setting aside a decree on basis of a compromise saying- “3A. Bar to suit-No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.” In 2006(5) SCC 566 Pushpa Devi Bhagat vs. Rajendra Singh, the Hon’ble Apex Court also at paragraph 17 has held that a consent decree operates as estoppel and is valid and binding unless it is set aside by the Court which passed the consent decree by an order on an application under the proviso to Rule 3 Order 23 CPC. Therefore, the 5 application filed by the respondents under the proviso to Rule 3 of Order 23 CPC which has been numbered as Misc. Case No. 28 of 2004 is maintainable before the Court which passed the compromise decree. I therefore, find no reason to interfere with the impugned order. However, the learned counsel for the petitioners submitted that in the impugned order it has wrongly been observed that the five witnesses examined by the respondents in the miscellaneous case have been cross-examined by the petitioners. According to the learned counsel, in fact, the said witnesses have been examined behind the back of the petitioners. So far this fact is concerned, in this writ jurisdiction this Court cannot investigate. If so advised, the petitioner may approach the Court below by filing an application and if such application is filed the learned Court below shall consider and pass necessary order in accordance with law. With this observation, this writ application is disposed of. ASHWINI/- (Mungeshwar Sahoo, J.)