IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.137 of 2009 Dilip Kumar Singh Versus Lakshmeshwar Prasad Singh & Ors. ----------- 16. 21.09.2011 Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of opposite party as well as Mr.Nityanand Mishra, advocate who has been appearing as D.R. guardian of opposite party no.25. 1. This civil revision application has been filed against the order dated 14.11.2008 passed by the Court of Sub Judge II, Rosera in Misc. Case No.11/1992 by which the learned court below has dismissed the miscellaneous case as not maintainable. 2. The facts are not much in dispute that there was earlier a partition suit between the parties and that suit ended into a compromise decree dated 04.12.1979 between some of the parties to the suit. Thereafter a final decree proceeding has been initiated in pursuance to the preliminary decree. 3. The petitioner in this civil revision application had filed a petition purporting to be under Section 47 and Section 151 C.P.C. raising his objections to 2 the validity of the compromise decree and the Misc. Case No. 11/92 had been initiated on the basis of the said petition. The court below considered the objections raised by the opposite parties of the said miscellaneous case and held that the miscellaneous case can proceed under Section 151 C.P.C. but not under Section 47 C.P.C. The civil revision application filed against the aforesaid order by the opposite parties to the miscellaneous case was allowed to be withdrawn. Thereafter the court below proceeded to adjudicate the rival contentions of the parties and ultimately allowed the miscellaneous case by order dated 27.05.1995. The Civil Revision No.178/2006 was filed against this order and by order dated 21.05.2008 this Court allowed the civil revision application and remitted the matter back to the court below to consider the mater afresh and also to decide the question of maintainability of the miscellaneous case in view of the specific provisions of law. 4. By the impugned order the learned court below has come to the finding that the petition under Section 151 C.P.C. could not have been used in view of the other remedies available under the Code of Civil Procedure and on the basis of this finding the Misc.Case No.11/92 has 3 been dismissed as not maintainable. 5. After hearing the learned counsels of both the parties and perusing the impugned order it is clear that the petitioner of this revision application has sought to challenge the validity of the preliminary decree based on compromise mainly alleging perpetration of fraud. The petitioner has filed his petition also under Section 151 C.P.C. which was one of the courses available to him according to the principles laid down by the apex court a decision reported in 1993(3)PLJR SCC 21(Banwari Lal Vs. Smt.Chanda Devi) wherein the apex court has come to Court held as follows:- “14…The application for exercise of power under proviso to Rule 3 of Order 23 can be labeled under Section 151 of the Code but when by the amending Act specifically such power has been vested in the court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3…” 6. The same view has been reiterated by the apex court in another decision reported in 2006(5)SCC 566. On the basis of the authoritative decision of the apex court on this specific issue, a petition under Section 151 4 C.P.C.can very well be maintained for challenging the validity of a decree based on compromise. A miscellaneous case initiated on the basis of such a petition under section 151 C.P.C. cannot be held to be not maintainable and as such the impugned order passed by the court below cannot be upheld. The court below has clearly committed error of jurisdiction in passing the impugned order, which is accordingly, set aside. In the result, the civil revision application is allowed and the matter is remitted back to the court below to decide the Misc.Case No.11/92 on merits. It may be recorded that this Court has not expressed any opinion on the merits of the rival claim of the parties which shall be decided by the court below in accordance with law. As the matter arises out of a partition suit of the year 1970 it is expected that the learned court below will decide the miscellaneous case expeditiously and preferably within six months from the date of receipt of this order. The learned counsels appearing for both the parties have agreed to extend their full operation in disposal of the miscellaneous case. Nitesh ( V. Nath, J.)