IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 225 of 2008 Date of decision: 29.08.2011 Bisambhari Devi ... Petitioner Versus Roshan Lal and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. R.K. Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. For the respondents: Mr. Vikas Bhardwaj, Advocate, for respondent No. 1. Mr. Pankaj Sharma, Advocate, for respondent No. 2. V.K. Ahuja, J. (Oral): The present petition has been filed by the petitioner under Article 227 of the Constitution of India for quashing and setting aside the order as well as the decree dated 30.6.2007 passed by the learned Civil Judge (Junior Division) Court No. II, Ghumarwin, District Bilaspur, on the basis of a compromise held in Lok Adalat on 30.6.2007. 2. Briefly stated, the facts of the case are that respondent No. 1 had filed a suit before the Civil Judge (Junior Division) Court No. II, Ghumarwin, for declaration that plaintiff is owner in possession jointly over the suit land. The petitioner was a party to the suit as 1Whether reporters of Local Papers may be allowed to see the judgment? 2 defendant No. 51 before the learned trial Court and it was alleged that she was duly represented by advocate Shri J.R. Thakur as per certified copies of the order sheets attached with the petition. The allegations made by the petitioner are that a compromise had taken place between respondent No. 1 (plaintiff) and respondent No. 2 (defendant) and the compromise decree was passed. But since the petitioner who was also a defendant was not party to the said compromise, the decree in question is liable to be set aside. It was alleged that compromise was never signed by the petitioner or her counsel and as such, the impugned decree is liable to be set aside. 3. The above mentioned facts are not disputed by the respondents. Impeccable 4. I have heard the learned counsel for the parties and have gone through the record of the case. 5. The learned trial Court decreed the suit on the basis of the reconciliation made before the Lok Adalat and as per order dated 30.6.2007, compromise Ext. CA was placed on record by the parties. A perusal of the same shows that it is signed only by two parties i.e. plaintiff/respondent No.1 Roshan Lal and defendant No. 1 Trilok Chand. Accordingly, the suit was decreed by observing that other defendants are ex parte. Even if, they are ex parte, the said compromise cannot be binding upon them unless and until their names are got deleted and case is being contested by the plaintiff and defendant No. 1 only. 6. A preliminary objection has been raised that the present petition is not maintainable since the appeal lies under Section 96 C.P.C. According to the provisions of Section 96 C.P.C., no appeal shall lie from a decree passed by the Court with the consent of the parties. It 3 was submitted by the learned counsel for the petitioner that he had filed the present petition since the appeal does not lie under Section 96 C.P.C. 7. My attention has been drawn to the judgment of this Court passed by the learned Single Judge in RSA No. 530 of 2003 titled Smt. Sushila Devi and others Vs. Som Dutt and others, decided on 6.9.2004, wherein the learned Single Judge had considered the similar question. In that case, defendant was neither present before the Lok Adalat nor before the Court when the compromise decree dated 20.6.1998 came to be passed by the learned trial Court. It was also observed that nor the defendant No. 1 was represented by any authorized agent or counsel. It was further observed in that case that the compromise decree came to be passed merely on the statement of counsel for the plaintiffs and the statement of defendants No. 2 and 3. Admittedly, defendant No. 1 was ex parte as per order dated 5.5.1998. It was observed by the learned Single as under:- “A consent decree against which no appeal lies by virtue of Section 96, Code of Civil Procedure, means a decree arrived at between the parties with the consent of all persons concerned. As stated above, defendant No. 1 never consented to a decree being passed. The decree passed by the learned trial Court on 20.6.1998 is not a consent or compromise decree pure and simple. It is a decree passed partly on compromise insofar as defendants No. 2 and 3 are concerned and partly ex-parte insofar as defendant No. 1 is concerned. Therefore, the decree passed in the present case, not being a consent decree, the bar under Section 96, Code of Civil Procedure, would not be applicable and an appeal against such a decree would be maintainable.” 4 8. It is, therefore, clear that it was clearly held by the learned Single Judge that the bar under Section 96 C.P.C. would not be applicable and an appeal against such a decree would be maintainable. Thus, it is clear that once the appeal was maintainable, the present petition is not maintainable. Therefore, the petitioner is permitted to file an appeal before the competent Court of learned District Judge under Section 96 C.P.C. The time taken in pursuing the present petition shall not be included in computing the period of limitation in the appeal to be filed before the Court of learned District Judge. 9. In view of the above terms, the present petition stands allowed accordingly and the pending miscellaneous application(s), if any, also stands disposed of. Interim order stands vacated. ( V.K. Ahuja ), August 29, 2011 Judge (BSS)