( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2485 OF 2010 Kondabai w/o Punjaram Londhe, R/o Yenogora, Tq. Partur, District Jalna. PETITIONER VERSUS Babasaheb s/o Bapurao Bhumbar, R/o Yenogora, Tq. Partur, District Jalna. RESPONDENT .... Mr. R.T. Nagargoje, advocate for the petitioner. Mr. P.B. Rakhunde, advocate holding for Mr. G.B. Kulkarni, advocate for the respondent. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th July, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner seeks to challenge order passed by learned Civil Judge (J.D.), Partur on her application (Exh-59) in the suit (R.C.S. No. 21/2002). The petitioner had applied for sending the disputed thumb impression which was on the compromise petition filed in the earlier suit (R.C.S. No. 453/2000) and her thumb impression ( 2 ) for the purpose of comparison and opinion by an handwriting expert. The application came to be dismissed, upholding the objections raised by the respondent. 2. The petitioner’s case before the trial Court is that the respondent manipulated a false compromise decree in earlier suit (R.C.S. No. 453/2000) by showing herself as consenting defendant though she never gave thumb impression on any consent terms nor was present in the trial Court. She alleged that the respondent managed to impersonate her by presenting some other woman before the Court while obtaining the so called consent decree in R.C.S. No. 453/2000. In short, she alleged that fraud was played by the respondent on the Court while obtaining the alleged consent decree. She, therefore, filed the suit for declaring the consent decree as null and void and further sought injunction. The petitioner alleged that she purchased the suit field bearing Gut No. 70 to the extent of 5 acres area by virtue of a sale-deed dated 30th December, 1987 and continued to remain in possession, but the defendant/respondent offered unlawful obstruction in her possession under the pretext that he received certain rights on strength of the fraudulent consent decree. ( 3 ) 3. The parties went to trial on certain issues struck by the learned Civil Judge (J.D.). In order to prove her contention that she was never present in the Court and had not put her thumb impression on the consent terms, the petitioner submitted application (Exh-59) for sending her thumb impression alongwith the disputed thumb impression for opinion of a finger-print expert. It appears that she sought comparison of both the thumb impressions by the finger-print expert of Crime Detection Branch, CID, Pune. The learned Civil Judge held that there is no provision in the Civil Procedure Code to refer the matter for verification of thumb impression to C.I.D. and, therefore, the application was without substance. It was as such rejected. 4. Heard learned counsel for the parties. Initially, Mr. Rakhunde, holding for Mr. G.B. Kulkarni, sought adjournment and it was rejected and, therefore, he put forth his submissions in short. He contended that when appellate remedy was available to the petitioner to challenge the consent decree in the previous suit, no such remedy was availed and, therefore, the suit itself is not maintainable. He argued that the application was rightly rejected because the petitioner desired to create evidence in order to mislead ( 4 ) the Court. 5. At the threshold, it is to be noted that a compromise decree cannot be challenged by way of appeal, if it is a genuine compromise. Order-XXIII Rule-3 of the Code of Civil Procedure reads as below : “3. Compromise of suit. - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject- matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit; Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.” ( 5 ) Section 96 (3) of the Code of Civil Procedure reads as follows : “96. Appeal from original decree. - (1) ***** (2) ***** (3) No appeal shall lie from a decree passed by the Court with the consent of parties.” 6. Perusal of sub-section 3 of section 96 of the Code of Civil Procedure makes it manifestly clear that a consent decree cannot be appealed against and, therefore, the contention of the respondent that such remedy was available to the petitioner is without any substance. Moreover, what petitioner alleges is that there was no consent at all and, therefore, the decree is not a consent decree as such, but it is a fraudulent decree brought in existence by impersonating her as a defendant of the earlier suit. It is necessary for the trial Court to ascertain whether such impersonation was committed by the respondent/defendant in order to play fraud on the Court. This is a serious matter which requires immediate criminal action, if material is found to establish that the petitioner was, in fact, not present in the Court on ( 6 ) the relevant day nor gave the consent and was impersonated by some other woman. In order to set right such a wrong, the comparison of the thumb impression was very much necessary. Otherwise, mere statement of the petitioner or some witness is not likely to advance the cause of justice any further. 7. Considering the peculiar fact situation of the present case, I find that the impugned order rendered by the learned Civil Judge (J.D.) is arbitrary and perverse. It is difficult to appreciate that such request could be rejected for the reason that there is no provision in the Code of Civil Procedure. This observation of the learned Civil Judge only reflects lack of application of judicial mind to the given fact situation. Hence, the impugned order is quite unsustainable in the eye of law. 8. In the result, the petition is allowed. The impugned order is set aside. The application be deemed as granted and the learned Civil Judge is directed to forward the disputed thumb impression on the consent terms and the thumb impression of the petitioner, which may be taken in presence of the learned counsel of the parties and the Presiding Officer of the Court, for opinion of the Finger-Print Expert. The ( 7 ) petitioner to deposit the required fees and charges in the Court of learned Civil Judge within period of three (3) weeks. Petition is accordingly disposed of. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp2485-10