IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Stay Application No. 8661 of 2001 In Appeal From Order No. 369 of 2010 Beer Singh Rana S/o Shri Dalip Singh R/o Village Kota Pulani Post Office Mala Vaya Laxman Jhula, Pauri Garhwal At present Kandarwala, Bhaniawala Police Station Doiwala, District Dehradun ………………..Appellant Versus Smt Beena Rana W/o Shri Beer Singh Rana D/o Shri Rajendra Singh Rawat R/o Village Dharaya Mahadev Srinagar, Pauri Garhwal …........…Respondent Shri Lokendra Dobhal, Advocate, present for the appellant Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Sudhanshu Dhulia, J. Oral: Hon'ble Prafulla C.Pant, J. 2 Heard. (2) This appeal, preferred under section 19 of Family Court Act, 1984, is directed against the judgment and order dated 07.09.2010, passed by Principal Judge Family Court, Dehradun, in Misc. Case No. 64 of 2005, whereby the application 3A moved by the appellant/petitioner under Order 23 Rule 3 of Code of Civil Procedure 1908 (for short CPC), (in suit no. 129 of 2005) is rejected. (3) Brief facts of the case, are that, admittedly appellant/petitioner Beer Sing Rana filed a suit for divorce by moving a petition under section 13 of Hindu Marriage Act, 1955, which was registered as suit no. 129 of 2005. From the perusal of the record it is clear that parties to matrimony filed a compromise paper 11-A before the trial court, which was verified on 31.03.2005, in the presence of parties and their counsel namely Shri A.K.Jain, Advocate present for the petitioner, and Shri Arun Himani, Advocate, 3 present for the respondent. (4) The trial court after verification of the compromise, decreed the suit in terms of compromise of 31.03.2005. The terms of the compromise which are part of the decree show that the petitioner (present appellant) agreed to pay to his wife, and the children who are living with her ` 4,000/- per month as maintenance, apart from permitting them to live in the quarter. It was also agreed that if the petitioner does not touch liquor and meat and would not assault the children, whereafter on completion of one such year he was allowed to join the company of his wife. It was also mentioned that half beegha land situated in Rani Pokhri shall be gifted by the petitioner to his wife and two children living with her. After his retirement from Army the petitioner shall divide post retiremal benefits in 50:50 ratio between himself, and his wife as children. After a decree was passed, the petitioner filed an application under Order 23 Rule 3 of CPC stating that an undue influence was exercised of him, and he had no knowledge of 4 the compromise. The trial court rejected that application as Misc. Case No. 64 of 2005, and after hearing the parties, and considering the evidence. Hence this appeal. (5) We have considered the submissions of learned counsel for the appellant and also went through the decree passed by the trial court, and impugned order dated 07.09.2010, passed in Misc. Case No. 64 of 2005, whereby the application 3A moved under Order 23 Rule 3 of CPC was rejected. (6) Firstly what is to be kept in mind is that Order 23 Rule 3 of the Code applies to the pending suits. After a verification of compromise in the presence of the parties and their counsel, the decree was admittedly passed. As such, thereafter rule 3 had no application to the present case. It is pertinent to mention here that no fraud has been alleged in the compromise. What is alleged is the undue influence. Simultaneously, a plea is taken that appellant had no knowledge of the compromise decree. The pleas taken by the 5 petitioner are inconsistent to each other. It was the petitioner who filed the divorce petition. It was he who verified the compromise in the presence of his counsel before the trial court. The trial court has rightly pointed out at that stage he could have been denied that the terms mentioned in the compromise that the same are not acceptable to him. (7) Sub Section (3) of section 96 of CPC as well as sub section (2) of section 19 of Family Court Act, 1984, bars appeal against the decree passed on the basis of compromise between the parties. Rule 3A of Order 23 of the Code further provides that no suit shall lie to set aside a decree on the ground that the compromise on which decree is passed was not lawful. The only course open to an aggrieved party in the cases of compromise decree is to challenge the same on the ground of fraud. We have already mentioned above that it is not a case in which the fraud is said to have been played. By moving an application under Order 23 Rule 3 of CPC , which could have been moved only in a pending 6 suit, a decree passed on the basis of compromise can not be challenged. (8) For the reasons as discussed above, we do not find any substance in this appeal. The appeal is dismissed. (Stay Application No. 8661 of 2001, also stands dismissed). (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 12.05.2011 Nahid