M.M. Pareed Pillay, J.@mdashAppellant in S.A.833 of 1988 is the Plaintiff in O.S.663 of 1979 of the Munsiff''s Court, Kozhikode-II.
Defendants 1 and 3 in O.S.543 of 1979 are the Appellants in S.A.833 of 1988. Plaintiff in O.S.663 of 1979 and first Defendant in O.S.543 of
1979 are sisters. Defendants 2 and 3 in O.S.543 of 1979 are the first Defendant''s daughter and husband. O.S.543 of 1979 is a suit for injunction
filed by the sister of the Plaintiff in O.S.663 of 1979. O.S.663 of 1979 was filed to set aside a compromise decree in A.S.340 of 1976 of the
Additional District Court. Kozhikode which was an appeal filed against the judgment and decree in O.S.434 of 1974 of the Munsiff''s Court,
Kozhikode-II. Both O.S.543 of 1979 and O.S.663 of 1979 were tried together, the leading case being O.S.663 of 1979. O.S.543 of 1979 was
decreed in favour of the Plaintiff in that suit, whereas O.S.663 of 1979 was dismissed.
2. The position of the parties as it stood in O.S.663 of 1979 is followed in the discussion hereunder. Plaintiff in O.S.663 of 1979 contended that
the plaint schedule properties originally belonged to Sankaran who died in 1963, that there was oral partition of the properties left behind by
Sankaran in 1965 through the intervention of three mediators viz. Achuthan, Appu and Mammad, that as peroral partition the plaint schedule
properties were allotted to her share and that when she received injunction notice in O.S.543 of 1979 she came to know of a compromise having
been recorded in A.S.340 of 1976. According to the Plaintiff, she is completely unaware of the compromise, she has not signed the compromise
and she did not engage any advocate in A.S.340 of 1976. Plaintiff contends that she is in possession of the plaint schedule properties on the
strength of oral partition.
3. Defence contention in O.S.663 of 1979 and the averments in the plaint in O.S.543 of 1979 are to the effect that really a compromise was
recorded in A.S.340 of 1976 and so O.S.663 of 1979 seeking to set aside the compromise decree is hit by Order 23 Rule 3-A of the Code of
Civil Procedure
4. The lower appellate Court upheld the defence contention that O.S.663 of 1979 is not maintainable in view of Order 23 Rule 3-A. Contention of
the Plaintiff''s is that Order 23 Rule 3-A cannot have any application in view of the averments in the plaint to the effect that the compromise decree
cannot be sustained as it s vitiated by fraud. Learned Counsel for the Defendants submitted that the aforesaid contention is not tenable in view of
the specific mandatory provision contained in Order 23 Rule 3-A which makes the position clear that no suit shall lie to set aside a decree on the
ground that the compromise on which the decree is based was not lawful.
5. Order 23 Rule 3-A envisages that no suit shall lie aside a decree on the ground that the compromise on which the decree is based was not
lawful. Order 23 Rule 3 enables the Court to pass decree in accordance with the compromise entered into between the parties. Explanation to the
proviso to Rule 3 states that an agreement or compromise which is void or voidable under the Indian Contract Act shall not be deemed to be
lawful within the meaning of this rule. As an agreement or compromise which is vitiated by fraud, coercion or undue influence would really come
under the aforesaid explanation, Plaintiff''s contention that in a case where fraud is alleged against the compromise decree it would not be hit by
Rule 3-A is not tenable. A compromise decree if found to be based on fraud, collusion or undue influence cannot be considered to be lawful.
Merely because Rule 3-A does not specifically mention that a compromise decree found to be vitiated by fraud, undue influence or coercion
cannot be challenged by a saprate suit it cannot be given a very narrow interpretation as suggested by the Plaintiff''s counsel.
6. Order 23 Rule 3-A was inserted by the CPC Amendment Act, 1976. The said amendment was introduced in Order 23 with a view to avoid
multiplicity of suits. Often the Courts were plagued with suits challenging compromise decrees for one reason or the other. This resulted in appeals
and further appeals and procrastination of disputes. To avoid the predicament of the Courts and the parties the Parliament in its wisdom introduced
Rule 3-A. By adding the proviso to Rule 3 and the explanation thereto it is discernible that the object of the amending Act is really to compel the
party challenging the compromise to question the same before the Court which had recorded it. It is that Court which recorded the compromise to
decide the controversy between the parties. Explanation makes the position clear that an agreement or compromise which is void or voidable
under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said rule. In view of the proviso and the explanation,
contention of the Plaintiff that in a case where fraud, coercion or undue influence is alleged it can be resolved only in a separate suit and hence Rule
3-A has no application is not tenable.
7. Proviso to Order 23 Rule 3 states that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived
at, the Court shall decide the question. It can only mean the Court before which a petition of compromise was filed and which has recorded such
compromise. There cannot be any doubt that in view of the proviso to Rule 3 and Explanation thereto, the Court which entertained the
compromise petition has to examine whether it was void or voidable. The above position has been made clear in Banwari Lal Vs. Smt. Chando
Devi (through L.R.) and another, .
8. Counsel for the Plaintiff relied on S.G. Thimmappa v. T. Anantha AIR 1986 Kart. 1 in support of his contention that challenge against a
compromise decree on the ground of fraud, under influence or coercion is not hit by Rule 3-A. In view of the aforesaid Supreme Court ruling the
Karnataka decision is not longer good law. That apart, the Karnataka High Court has not considered the availability of the remedy by way of
appeal to the person who challenges compromise decree. Order 43 Rule 1-A enables a party to file appeal challenging compromise decree for
valid grounds. Order 43 Rule 1-A(2) states that in an appeal against a decree passed in a suit after recording a compromise or refusing to record a
compromise, it shall be open to the Appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.
Thus, it would have been perfectly open to the Plaintiff to file appeal against the compromise decree. This provision as well as Order 23 Rule 3-A
makes the position abundantly cleat that challenge against a compromise decree cannot be by a separate suit.
9. The trial court''s finding that the Plaintiff has not succeeded in proving that Ext.A-1 decree is vitiated by fraud has been confirmed by the lower
appellate court. Both the courts held that the Plaintiff in O.S.543 of 1979 is entitled to the injunction sought for in that suit. The concurrent findings
of the Courts below do not warrant interference by this Court in the second appeal.
In the result, the second appeals are dismissed. There is no order as to costs.