@JUDGMENTTAG-ORDER
Motilal B. Naik, J.@mdashThis Civil Revision Petition is directed against the order passed in I.A.N0. 1093/90 in O.S.No. 288/90 on the file of the Principal Subordinate Judge, Ranga Reddy District, allowing the application filed for setting aside the compromise decree in O.S. No. 288/90.
2. It is the case of the petitioner herein that O.S.No. 288/90 was filed seeking partition of suit schedule properties which are matruka properties left by one Shiraji also known as Mirza Rafee Shirazi. The first respondent herein i.e., Smt. Zareen Taj Begum is only a tenant over the matruka properties left by Shiraji, In the said suit filed for partition, the first respondent herein was represented by her General Power of Attorney Mr. Ali Raza. Said Ali Raza engaged an Advocate Sri K. Madhava Rao, and the matter was contested. Ultimately, the matter ended up in a compromise. It is stated that the first respondent through her General Power of Attorney entered into a compromise in O.S.No. 288/90 and accordingly a compromise decree was passed on 27-7-90 allotting the respective shares to parties.
3. Notwithstanding the fact of compromise effected and a compromise decree passed on 27-7-90, the first respondent on fictitious, grounds filed I.A.No. 1093/90 before the trial Court seeking to set aside the compromise decree passed in,O.S.No. 288/90 dated 27-7-90 by contending that she had never authorised said Ali Raza to act on her behalf as General Power of Attorney. She further stated that her eldest daughter-in-law in collusion with said Ali Raza got documents forged and filed a suit and compromised with the parties. This application which was filed for setting aside the compromise decree was resisted by the petitioner herein by contending mat there are no grounds in the application. Even otherwise, she is not entitled to seek seeing aside of the compromise decree without recourse to filing of an appeal either under Order 43 Rule 1-A or u/s 96(1) of the Civil Procedure Code. It is also contended that the application filed is u/s 151 CPC and therefore, such an application is not maintainable.
4. The lower Court on a consideration of the material placed on record, allowed the application and set aside the compromise decree effected on 27-7-1990.
5. Aggrieved by the said order, the present Civil Revision Petition is filed.
6. This Court while admitting this C.R.P., directed notice to the respondents. On behalf of respondents 2 to 8, Sri M.V.S. Suresh Kumar, learned Counsel has filed Vakalat. As far as the first respondent is concerned, the records disclose that the first respondent has been served with notice which was sent by the Office under the registered post acknowledgment due to her Bangalore addres. on 21-3-1994. Despite service of notice, neither she is represented by any advocate, nor appeared in person. Therefore, I have taken up to decide the matter on merits after hearing Sri Koka Raghava Rao, Counsel for the petitioner and Sri M.V.S. Suresh Kumar, Counsel for Respondents 2 to 8.
7. Sri Koka Raghava Rao, Counsel appearing on behalf of the petitioner submits that when a compromise decree has been passed under Order 23 Rule 3 of the Civil Procedure Code, the aggrieved party to such a decree has to necessarily file an appeal under Order 43 Rule 1-A or u/s 96(1) of CPC.
8. No doubt, it is true that once a compromise decree is passed under Order 23 Rule 3 of CPC, an appeal lies under Order 43 Rule 1-A or u/s 96(1) of C.P.C. However, in a given circumstance, the party aggrieved by a decree of compromise can still be entitled to invoke the inherent powers of the Court and file an application u/s 151 of CPC seeking to set aside the compromise decree. This principle has been well settled by a decision of the Supreme Court in
9. In this case, the first respondent filed an application in I.A.No. 1093/90 in the Court below invoking inherent jurisdiction of the Court u/s 151 CPC to set aside the compromise decree passed in O.S.No. 288/90 dated 27-7-90 alleging that she had never authorised said Ali Raza to represent her case in the Court below and she also alleged some fraud against her daughter- in-law and Ali Raza. Surprisingly, she has not chosen to enter into the witness box and depose to that effect. She also did not choose to examine any person with reference to any record so that the stand taken by her alleging fraud against Ali Raza, General Power of Attorney could have been satisfactorily proved before the Court. Mere filing an affidavit before the Courts seeking to set aside the decree of compromise on the ground of fraud is not sufficient for the Courts to set aside the decree of compromise passed earlier on the basis of a compromise entered into between the parties. While acting upon such an application, Courts must necessarily have sufficient material to come to a clear conclusion that fraud as alleged by the petitioner has been satisfactorily proved, and in such circumstances, the compromise decree could be set aside. As I have stated earlier, in this case, neither the first respondent who filed the application I.A.No. 1093/90 for setting aside the compromise decree has come into the witness box and deposed to that effect, nor was there any other witness in support of her claim of fraud which has been alleged before the Court below. In the absence of any evidence, the lower Court, in my view, has erroneously allowed the application by setting aside the compromise decree.
10. In this view of the matter, I am of the view that the order of the lower Court cannot be sustained and the same is accordingly set aside. I.A. No. 1093/90 is dismissed.
11. In the result, this Civil Revision Petition is allowed. No costs.
