Code of Civil Procedure, 1908 – Or.XXIII r.3 – The plaintiff filed a partition suit, including, against the predecessors of the present respondent, seeking 1/4th share in the total property of common ancestor – During the pendency thereof, a compromise petition was filed by the plaintiffs and defendants ‘jointly’ which was accepted by Sub-Judge-01 Muzaffarpur vide order dated 22.02.1994 – Pursuant thereto, a final decree was prepared on 27.05.1997 in terms of the above said compromise petition – After a quarter of a century, defendant no.5 represented through LRs-the respondents herein filed a Miscellaneous Case seeking setting aside of the aforesaid compromise decree on the ground that the same had been obtained by fraud and without the signatures of defendant no.5 – The same was allowed by the Trial Court – Appeal against the same, was dismissed by the High Court – Correctness:
Held: In the present case, there is no express authorisation by defendant no.5 allowing the counsel-M to sign the compromise on his behalf, nor is there anything on record to demonstrate the exigent circumstances which prompted the counsel to act without seeking a clear approval from defendant no.5 – In absence of the aforesaid, the ‘voluntary’ aspect mandated by Or.XXIII r.3 of the Code of Civil Procedure, 1908, which is essential for a compromise decree cannot be established on the record – As such, the requirements of Rule 3 have not been complied with – The resulting compromise is contrary to law – As far as delay is concerned, in view of this Court, if the delay had been the ground to dismiss the miscellaneous case, the effect would be to perpetuate something which is not in accordance with law – The same cannot be permitted – In this case, although the compromise was not signed by him, defendant no.5’s rights in the property which is not miniscule were directly affected by the compromise – Also, most basic facts in the instant case are disputed – It is for the aforenoted reasons that the delay of 25 years has to be given a go-by in the facts of this case – It is not in all cases that such large delay can be set aside – Whether or not a particular case warrants taking such a view is to be determined after a detailed examination of the record in each case – The compromise decree has been correctly set aside – The issues of the partition suit require to be adjudicated in a full trial. [Paras 5.6, 6.5, 6.6, 6.7]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.