IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.39 of 2009 MD. WAJAHAT HUSSAIN, alias Wajahat Hussain son of Late Fazilat Hussain, Resident of Village- Kukraon Amori, P.S.-Dhamdaha, District- Purnea …Plaintiff/Respondent/Appellant Versus MAZAHABI KHATOON D/o Late Fazilat Hussain, W/o Md. Muslim, Resident of Village-Kukraon Amori, P.S.-Dhamdaha, District- Purnea …Defendant/Appellant/Respondent ----------- For the appellant : Mr. V. Nath & Md. Waliur Rahman, Advocates For the respondent : Mr. Vidya Sagar, Mrs. Anjana Bhagat & Samir Kumar Ranjan, Advocates ------------ 5/ 11.02.2011 The appellant is aggrieved with the judgment and decree dated 20.11.1988 passed by the Additional Sessions Judge-cum-Fast Track Court No. VII, Purnea, in Title Appeal No.119 of 1999, by which he has set aside the judgment and decree of the Sub-Judge 1st, Purnea, in Title Suit No. 95 of 1984, passed on a compromise and remanded the matter back for fresh adjudication. The background facts of the case is that a Title Suit for partition was filed by the appellant which was numbered as 95 of 1984 in which the respondent no.1, who happens to be the sister of the appellant and his mother appeared as defendants. In the meanwhile, a compromise was effected between the parties and such a petition was filed on 26.04.1985. The same was accepted on 13.03.1986, on which date a preliminary decree was passed. The final decree was finally prepared on 16.06.1988. Five years later, a Misc. Case was filed by the respondent which was numbered as Misc. Case No. 9 of 1993 mentioning that the compromise had been 2 obtained by fraud and it was not binding on them. On such application, evidence was led in the court below and finally on 20.02.1997 the Misc. Case was dismissed holding the compromise to be valid. As against this, a Misc. Appeal was filed which was numbered as Misc. Appeal No.14 of 1997 and the same was dismissed affirming the compromise on 19.02.1999. As against this order, a Civil Revision bearing no.994 of 1999 was filed here which was permitted to be withdrawn with liberty to the petitioner- respondent to file an appeal along with the limitation petition directing the court below to consider the limitation in the light of the bonafide of the respondent that she was pursuing her remedy in the High Court. When the matter went before the appellate court, the impugned judgment and decree was passed on 20.11.2008 holding therein that compromise was not genuine and, therefore, it would not work as estoppel also in view of the fact that despite the court’s order that evidence be led to determine the genuineness of the compromise petition, on 03.05.1985, without doing so it recorded the decree. The court also repelled the argument of the defendant that the suit was barred under section 96(3) of the Code of Civil Procedure holding that since it was a statutory appeal it could not be barred. He relied upon a decision of this court reported in 1999(2) PLJR 184 for this purpose. The Appellant contends that once a decree was passed on a compromise which was challenged five years later in which due enquiry was done; the appeal in the court below was barred. He further contends that even though this High Court had given liberty 3 to file an appeal, the mandate was for consideration only on the point of delay and not that it directed that the appeal would be maintainable. In any view of the matter, he contends, that now the position has been clarified by the Hon’ble Supreme Court in the case of Pushpa Devi Bhagat Vs. Rajinder Singh & Ors. [(2006) 5 SCC 566 paragraph 17], wherein, it has been specifically held that no appeal would lie in a compromise decree. On the other hand, learned counsel for the Respondent submits that even if there was no specific provision for maintainability of the suit, this court had granted liberty to the respondent to file an appeal, therefore, it could not be said to be not maintainable. Further submission is that filing of the appeal was a bonafide act of the respondent since compromise has been effected by playing fraud which could not held binding on any party. Moreover, in view of the noting of appellate court that original court had ordered for enquiry into the matter of compromise on 03.05.1985, but proceeded to pass a decree on 13.03.1986 without holding such enquiry it was not final and binding on the defendant. On going through the facts of the case, admittedly, section 96(3) of the Code of Civil Procedure bars an appeal from a decree on compromise as also that when the matter came for determination before the Hon’ble Supreme Court it specifically held that no appeal would lie and the express bar contained in Section 96(3) of the Code of Civil Procedure was binding and no liberty could be taken on the argument that the appeal was a creature of the statute giving absolute right of appeal even when there is an express 4 bar. Further, in my opinion, it has rightly been contended by the counsel appearing for the appellant that on close reading of the liberty granted by this court in Civil Revision No.994 of 1999, mandate was only to the extent of consideration of limitation and not that the appeal would lie. In view of such, this Misc. Appeal is allowed and the judgment and decree dated 20.11.1988 passed by the Additional Sessions Judge-cum-Fast Track Court No. VII, Purnea, in Title Appeal No.119 of 1999 setting aside the judgment and decree of the Sub-Judge 1st, Purnea, in Title Suit No. 95 of 1984, is hereby set aside. In the result, the appeal is allowed. JA/- (Anjana Prakash,J.)