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Morium Bibi & Ors. v. Musst. Showkatara Begum & Ors.
Structured Summary of the Opinion (Majumdar, J.) — Showkatara Begum v. Morium Bibi, Appeal from order dated 24th February 1992
Factual and Procedural Background
The dispute concerns title and the binding effect of a compromise decree relating to premises No. 6, Madan Street, Calcutta. The original owner, Haji Md. Rafique (Sunni Hanafi), died intestate leaving widow Walliunnessa Begum, sons Abdul Karim and Abdul Rashid, and brother Md. Yasin. Abdul Karim and Abdul Rashid predeceased, leaving widows Khairunnessa Begum and Zaibunnessa Begum respectively.
In September 1968 Abdul Karim executed a Deed of Wakf in respect of the premises, with Khairunnessa Begum and Zaibunnessa Begum as confirming parties. Mustaque Ahmed (father of the appellants) and Hasim Abdul Halim were appointed joint mutawalis. In 1969 Khairunnessa Begum, Zaibunnessa Begum and Walliunnessa Begum instituted Suit No. 1368 (or 1363 as referenced earlier) of 1969 against Mustaq Ahmed & Ors. seeking, inter alia, a declaration that the 17th September 1968 Deed of Wakf was void and that they (and Md. Yasin as predecessor-in-interest) were owners. Md. Yasin was defendant No. 3 and was said to have a 147/256th undivided share.
The earlier suit was decreed ex parte on 30th January 1986. The heirs of the original defendants (the present appellants) applied under Order IX Rule 13 to set aside but the application was dismissed; appeals were filed. During the pendency of the appeal (Appeal No. 205 of 1986) the contesting parties filed Terms of Settlement. The appeal court passed a decree in accordance with those Terms of Settlement on 14th February 1991, thereby modifying the trial court's ex parte decree.
The successors-in-interest of Md. Yasin (the present plaintiffs/respondents in Suit No. 724 of 1991 — Showkatara Begum & Ors.) filed the present suit (No. 724 of 1991) seeking a declaration that the appeal court decree dated 14th February 1991, the Terms of Settlement, and the earlier Suit No. 1368/1969 decree were void, illegal and not binding on them; they sought delivery in accordance with the purported terms of settlement, injunctions, appointment of a receiver, costs and other reliefs.
The appellants (including Morium Bibi) applied in the trial court to dismiss Suit No. 724/1991 on the ground that the plaint was barred by Order 23 Rule 3A of the Code of Civil Procedure (CPC) which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is passed was not lawful. The trial court dismissed that application and directed the filing of written statements. The present appeal challenges that order of the trial court dated 24th February 1992.
Legal Issues Presented
- Whether the Terms of Settlement on the basis of which the decree dated 14th February, 1991 was passed can be challenged by an application under the proviso to Rule 3 of Order 23 CPC, or by an appeal under Section 96(1) CPC, or whether they can be challenged by an independent suit (i.e., whether an independent suit is barred by Rule 3A of Order 23 CPC).
- Whether Rule 3A of Order 23 CPC (inserted by the 1976 Amendment) bars a stranger or a non-signatory to the compromise from instituting an independent suit to set aside a compromise decree that affects his rights.
Arguments of the Parties
Appellants' Arguments
- The appellants contended that after the insertion of Rule 3A into Order 23 by the 1976 Amendment, the only forum available to a party aggrieved by a compromise decree is the forum which passed the decree (i.e., the court which recorded the compromise), and that an independent suit to set aside a compromise decree is barred by Rule 3A.
- They argued that if the respondents wished to challenge the Terms of Settlement or the decree made on its basis, the challenge must be made before the court which passed the decree — either by a petition under the proviso to Rule 3 of Order 23 or by an appeal under Section 96(1) (read with Rule 1A of Order 43) — and not by an independent suit.
- The appellants relied upon the Supreme Court decision in Banwarilal v. Chandu Devi (1993) and a Calcutta High Court decision (Iswar Gopal Jew v. Bhagawan Das, AIR 1982 Cal 12) to support their view that an independent suit is barred.
Plaintiffs-Respondents' Arguments
- The plaintiffs-respondents (successors of Md. Yasin) argued that Md. Yasin (defendant No. 3 in the earlier suit) was not a party to the Terms of Settlement and that accordingly the compromise/decree is not binding on him or his heirs and representatives.
- They submitted that Rule 3A must be read together with Order 23 Rule 3 (and Order 13 Rule 3) and cannot be read in isolation; the word "compromise" in Rule 3A should be read as meaning a written compromise as contemplated by the first part of Rule 3 (i.e., one in writing and signed by the parties).
- The respondents relied on a decision of the Allahabad High Court (Suraj Kumari v. District Judge, Mirzapur — cited in the opinion as AIR 1990/1991 Allahabad 75) which held that Rule 3A is confined to parties to the suit and does not apply to a stranger to the compromise decree; therefore, a stranger whose rights are affected may institute a suit to set aside the compromise decree.
- They contended that since Md. Yasin did not sign the Terms of Settlement, Rule 3A would not apply to bar their suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court in this Opinion |
|---|---|---|
| Banwarilal v. Chandu Devi (Supreme Court) — cited in the opinion as (1993) 1 SCC 581 : AIR 1993 SC 1139 | Interpreting scope of Rule 3A of Order 23 CPC and remedies available to challenge compromise decrees; interaction with Rule 1A of Order 43 and Section 96(3) CPC. | The court relied on this decision to conclude that after the 1976 amendment the proper remedies to challenge a compromise decree are a petition under the proviso to Rule 3 of Order 23 or an appeal under Section 96(1) read with Rule 1A of Order 43, and that an independent suit is barred by Rule 3A. |
| Iswar Gopal Jew v. Bhagawan Das (AIR 1982 Cal 12) — decision of this Court | The Calcutta High Court's view aligning with the Supreme Court's interpretation that remedies lie before the court which recorded the compromise. | The opinion notes that the view in this Court's earlier decision is the same as the Supreme Court's position relied upon and uses it to support the conclusion that an independent suit is barred. |
| Suraj Kumari v. District Judge, Mirzapur (Allahabad High Court) — cited in the opinion as AIR 1990/1991 Allahabad 75 | Held that Rule 3A is confined to the parties to the suit and does not bar a suit by a stranger to the compromise decree whose rights are affected; emphasized reading Rule 3A in context with the rest of Order 23. | The court considered this authority but distinguished it on the facts because Md. Yasin was not a "stranger" to the earlier suit (he was defendant No. 3). While acknowledging the Allahabad view, the court held that the statutory bar (Rule 3A) nonetheless precludes an independent suit and that the proper remedy is a petition under proviso to Rule 3 or an appeal under Section 96(1) read with Rule 1A. |
Court's Reasoning and Analysis
The court's analysis proceeded in a sequence tied closely to the statutory provisions and controlling precedent cited in the record:
- Identification of material facts: it was undisputed that Md. Yasin (the predecessor-in-interest of the present plaintiffs-respondents and defendant No. 3 in the earlier suit) was not a signatory to the Terms of Settlement and that the appeal court's decree of 14th February 1991 (varying the trial court decree of 30th January 1986) was adverse to Md. Yasin's interest (he was acknowledged in the trial decree as owner to the extent of a 147/256th share).
- Statutory framework: the court examined Order 23 Rule 3 (which requires recording a written compromise and provides the proviso that the court decide when the factum of a compromise is disputed) and Rule 3A (which states that "No suit shall lie to set aside a decree on the ground that the compromise on which the decree is passed was not lawful"). The court emphasised that the proviso to Rule 3 contemplates a petition to the court to decide whether an adjustment/compromise exists.
- Precedent analysis: relying principally on the Supreme Court decision in Banwarilal v. Chandu Devi, the court set out the legal effect of the 1976 amendment that inserted Rule 3A. The Supreme Court had held that a party challenging the validity of a compromise may file a petition under the proviso to Rule 3 or an appeal under Section 96(1) (read with Rule 1A of Order 43), and that Section 96(3) (which bars appeal from a decree passed by consent) does not prevent such a challenge where Rule 1A(2) of Order 43 permits contesting the recording of a compromise.
- Application to the facts: the court concluded that in light of the statutory amendment and the Supreme Court's guidance, the only forum available to aggrieved parties to challenge a compromise decree is the forum that passed the decree (i.e., by petition under the proviso to Rule 3 of Order 23 or by appeal under Section 96(1) read with Rule 1A of Order 43). Therefore, an independent suit like Suit No. 724 of 1991 is barred by Rule 3A.
- Consideration of contrary authority: the court considered the Allahabad High Court decision (Suraj Kumari) which construed Rule 3A as confined to parties to the compromise and not applicable to strangers. The bench observed that Md. Yasin was not a stranger (he had been defendant No. 3 in the earlier suit), and therefore the Allahabad authority did not alter the conclusion that Rule 3A bars the present independent suit. The court did not decide the separate factual/legal point whether absence of Md. Yasin's signature meant the settlement was not a "compromise" for purposes of Rule 3; it held that such issues are matters for the forum where the challenge must be made.
- Conclusion of analysis: applying statutory text and precedent, the court found Suit No. 724/1991 to be barred by Order 23 Rule 3A and directed its dismissal. It ruled that plaintiffs-respondents may challenge the compromise decree only by the available remedies before the court which passed the decree.
Holding and Implications
Holding: The appeal is allowed and the suit No. 724 of 1991 (Showkatara Begum v. Morium Bibi) is barred by Order 23 Rule 3A of the Code of Civil Procedure and is therefore dismissed; the plaint is ordered to be taken off the file.
Implications:
- The direct effect is that the independent suit instituted by the plaintiffs-respondents to set aside the compromise decree is dismissed and removed from the file.
- The court clarified that a party aggrieved by a compromise decree may challenge it only by: (a) a petition under the proviso to Rule 3 of Order 23 before the court which passed the decree, or (b) an appeal under Section 96(1) of the CPC (in the light of Rule 1A of Order 43 permitting contest of recording of a compromise). An independent suit is barred by Rule 3A.
- The court observed that questions such as whether the absence of Md. Yasin's signature means the arrangement was not a "compromise" for purposes of Rule 3 are matters to be raised before the forum where the decree was passed; the present decision does not adjudicate that factual/legal point.
- No new judicial precedent was announced beyond the application of existing law and controlling authority (the court applied and followed binding precedent and earlier decisions as set out in the opinion).
- There will be no order as to costs.
Operative result reported in the opinion: the appeal is allowed; Suit No. 724 of 1991 is dismissed as barred by law; the plaint shall be taken off the file; parties to act on a signed copy of the minutes of the operative part; no order as to costs.
The Judgment of the Court was delivered by
Majumdar, J.:— This appeal is from the judgment and order passed by the learned Single Judge of this court on 24th February, 1992 dismissing the appellants' application for an order that the suit filed by Musst. Showkatara Begum & Ors. against the appellants being Suit No. 724 of 1991 filed in this court is hit by the provisions in Order 23 Rule 3A of the Code of Civil Procedure and be dismissed. The said suit is for a declaration that the decree dated 14th February, 1991 passed pursuant to the terms of the settlement in Appeal No. 205 of 1986 as also the Suit No. 1368 of 1969 filed by Khairunnessa Begum & Ors. against the defendants including Md. Yasin the predecessor-in-interest of the respondent Showkatara Begum & Ors. are void, illegal and not binding upon the plaintiffs.
2. One Haji Md. Rafique, a muslim governed by the Sunni Hanafi School was the owner of plot of land measuring about 5 Cottahs 6 Chi Hacks being No. 6, Madan St., Calcutta and he had a cotton thread business under the name and style of Haji Mohammed Rafique at 10, Chandney Approach, Calcutta. The said Haji Md. Rafique died intestate leaving behind him his widow Walliunnessa Begum and two sons Abdul Karim and Abdul Rashid and a brother Md. Yasin and the said Abdul Rashid died in 1962 leaving behind his widow Zaibunnessa Begum and Abdul Karim died in 1968 leaving behind his widow Khairunnessa Begum as would appear from the following genealogical table.
3. Sometime in September 1968 the said Abdul Karim executed a Deed of Wakf in respect of the premises No. 6, Madan St. Calcutta, wherein the said Khairunnessa Begum and Zaibunnessa Begum were confirming parties. One Mustaque Ahmed, since deceased, father of the appellants and one Hasim Abdul Halim were appointed Joint Mutwalis under the said Deed of Wakf. Sometime in 1969 the said Khairunnessa Begum, Zaibunessa Begum and Walliunnessa Begum instituted a suit being Suit No. 1363 of 1969 against Mustaq Ahmed & Ors. praying inter alia, for a declaration that the said alleged deed of wakf dated 17th September, 1968 in respect of the premises No. 6. Madan St. Calcutta is void, illegal and binding upon the plaintiffs and also a declaration that the plaintiffs and the said Md. Yasin the Predecessors-in-interest of the plaintiffs are owners of the premises of the said 6, Madan St. Calcutta and other reliefs. The said Md. Yasin, the brother of said Haji Md. Radique was the defendant No. 3 in the said suit. It is claimed in the said suit that Md. Yasin had an undivided 147/256th share in the said premises No. 6, Madan St. Calcutta. The said Md. Yasin died on 7th June, 1972 leaving behind the respondents Showkatara Begum & Ors. the plaintiffs in the present suit being Suit No. 724 of 1991. The appellant Morium Bibi is the widow of Mustaq Ahmed, the defendant No. 1 in the suit being Suit No. 1368 of 1969. The said suit was decreed ex parte on 30th January, 1986. Thereafter, the appellants being the heirs, heiress of the original defendant took out an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said ex parte decree. The said application was also dismissed. The appellants thereafter preferred an appeal from both the order and the decrees. During, the pendency of the said appeal, a Terms of settlement was filed by the contesting parties. According to the appellants, all along in the trial court as also in the appeal court the plaintiff in the suit and also the appellants were contesting the suit as also the appeal. It is also the case of the appellants that the defendant No. 3 the said Md. Yasin the predecessor-in-interest of the plaintiffs in the present suit, the respondents in this appeal never contested the said appeal nor the suit in the trial court. By the said Terms of settlement put in the appeal court, the property being premises No. 6, Madan St. Calcutta was allotted in two lots, one in favour of the wakf property and the other in favour of the secular property. The allegations and counter-allegations were withdrawn. The appeal Court passed a decree in accordance with the said Terms of Settlement setting aside the ex parte decree passed by the trial Court. The appeal was accordingly disposed of on 14th February, 1991.
4. The respondents in the suit Showkatara Begum & Ors. the successor of Md. Yasin have instituted a suit being the present suit No. 724 of 1991 claiming a declaration in the present suit that the said decree dated 14th February, 1991 passed by the appeal court pursuant to the Terms of Settlement in Appeal No. 205 of 1986 and the said suit No. 1368 of 1969 and also the said Terms of Settlement are void, illegal and not binding upon the plaintiffs. The decree directing the defendants to deliver on the said purported terms of settlement and injunction restraining the defendants from interfering or obstructing the possession and enjoyment of the said premises by the plaintiffs in anyway; Receiver; costs and further or other reliefs. This suit is filed against the appellant Morium Bibi & Ors.
5. The appellant Morium Bibi took out an application before the trial court for dismissal of the present suit being Suit No. 724 of 1991 instituted by the respondent Showkatara Begum & Ors. against the appellants Morium Bibi & Ors. on the ground that the plaint in the suit is barred by the provisions of Order 23 Rule 3A of the Code of Civil Procedure which provides that no suit shall lie to set aside the decree on the ground that compromise on which the decree is passed is not lawful. The appellants being the petitioners claimed that the suit is liable to be dismissed as being barred by Order 23 Rule 3A of the Code of Civil Procedure. As stated above, the application taken out by the appellants Morium Bibi & Ors. was dismissed and the directions for filing written statement were given. This appeal is against such order of the trial court.
6. The question involved in this appeal is whether the said Terms of Settlement on the basis of which the said decree dated 14th February, 1991 was passed can be challenged by an application under Rule 3 of Order 23 of the Code of Civil Procedure or by an appeal under Section 96(1) of the Code of Civil Procedure, or by an independent suit. It is contended on behalf of the appellants that if the respondents Showkatara Begum and Others want to challenge the said Terms of Settlement on this basis of which the said decree was passed by the appeal court, then such challenge can only be made in the forum which passed such decree on the basis of the said Terms of Settlement. If however, the plaintiffs-respondents choose to challenge the said Terms of Settlement or the decree on the basis thereof by an independent suit, as has been done in the instant case, then such suit would attract the bar provided by Rule 3A of Order 23 of the Code of Civil Procedure.
7. It is the contention on behalf of the plaintiffs-respondents that the predecessor-in-interest of the plaintiffs-respondents, the said Md. Yasin, the defendant No. 3 in the said suit No. 1368 of 1979 (1) Khairunnessa v. Mustaq was not a party to the said Terms of Settlement on the basis of which the decree was passed. It is the contention on behalf of the respondents that the said Terms of Settlement on the basis of which the said decree was passed by the appeal Court is not binding on the plaintiffs-respondents on the ground that the same is not lawful, and further that the said Terms of Settlement was not signed by said Md. Yasin, the said predecessor-in-interest of the present plaintiffs-respondents nor was he a party to the same. It is therefore, the submission on behalf of the plaintiffs-respondents that the said compromise decree is therefore not binding on the said Md. Yasin the defendant No. 3 in the earlier suit as also his heirs and representatives being the plaintiffs in the present suit.
8. The learned counsel for the plaintiffs respondents has also submitted that the provisions contained in Order 13 Rule 3 and also Rule 3A of the Code of Civil Procedure have to be construed as a whole and Rule 3A cannot be read in isolation. The learned counsel has also submitted that the said Terms of Settlement on the basis of which the said decree was passed by the appeal court is relatable to the first part of the Order 23 Rule 3 of the Code of Civil Procedure and since the said Terms of Settlement not being signed by Md. Yasin the defendant No. 3 in the suit and the predecessor-in-interest of the present plaintiffs the said Terms of Settlement is not binding on Md. Yasin as also his heirs and representatives being the present plaintiffs. It is the submission by the learned counsel on behalf of the plaintiffs-respondents that the expression ‘compromise’ as contained in Rule 3A Order 23 of the Code of Civil Procedure is a compromise as contemplated in the first part of Rule 3 Order 23 of the Code of Civil Procedure where it is provided that the compromise should be in writing and signed by the parties and it is the further submission on behalf of the respondents that if such compromise is not signed by Md. Yasin, predecessor-in-interest of the present plaintiffs then it is not a compromise so far as the said Md. Yasin as also the present plaintiffs-respondents are concerned within the meaning of first part of Rule 3 Order 23 of the Code of Civil Procedure. It is therefore, the final submission on behalf of the plaintiffs-respondents that the bar as provided in Rule 3A Order 23 of the Code of Civil Procedure is not applicable and the present suit filed by the plaintiffs-respondents is not hit by the provisions of the said Rule 3A Order 23 of the Code of Civil Procedure.
9. The learned counsel for the appellants and also the learned counselor the other supporting respondents have contended that after the amendment of Order 23 and insertion of a new Rule being Rule 3A by Amendment Act, 1976 the only forum left to the parties aggrieved by the compromise on the basis of which the decree has been passed is the forum which passed such decree and no independent suit can be instituted by the aggrieved party challenging the compromise decree in view of the specific bar provided in Rule 3A Order 23 of the Code of Civil Procedure. The learned counsel for the appellants has cited a recent Supreme Court decision in (2) Banwarilal v. Chandu Devi, (1993) 1 SCC 581 : AIR 1993 SC 1139. The appellants have also referred to a decision of this court reported in (3) AIR 1982 Cal 12, Iswar Gopal Jew v. Bhagawan Das. The plaintiffs-respondents have cited an authority of the Allahabad High Court reported in (4) AIR 1990 Allahabad 75.
10. It is not in dispute that the said Md. Yasin the predecessor-in-interest of the present plaintiffs-respondents and the defendant No. 3 in the earlier suit was not a party to the said Terms of Settlement on the basis of which the said decree dated 14th February, 1991 was passed by the appeal court. It will also appear from the decree of the trial court in the said earlier suit being decree dated 30th January, 1986, that it has recognised the right of the said Md. Yasin as owner of the premises No. 6, Madan St. Calcutta to the extent of his 147/256th share as claimed in prayer (c) of the plaint in the said earlier suit being Suit No. 1368 of 1969. It is also true that the decree passed by the appeal court dated 14th February, 1991 by which the decree of the trial Court dated 30th January, 1986 was varied or modified is adverse to the interest of said Md. Yasin, the predecessor-in-interest of the present plaintiffs-respondents.
11. Order 23 Rule 3 provides as follows:—
“3. Where it is proved to the satisfaction of the courts that the suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by parties) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith (So far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit):
(Provided that where it is alleged by one party and denied by the other that an adjustment of satisfaction has been arrived at the Court shall decide the question but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks tit to grant such adjournment.)
(Explanation: An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule).
3A. No suit shall lie to set aside a decree on the ground that the compromise on which the decree is passed was not lawful”.
12. It will appear from the proviso to Rule 3 Order 23 of the Code of Civil Procedure that where it is alleged by one party and denied by the other that the adjustment or satisfaction has been arrived at, the Court shall decide the question. Now the question arises here which court shall decide with question.
13. The Supreme Court in the case of Bamwarilal v. Chandu Devi (supra) had occasion to consider the scope of Rule 3A of Order 23 of the Code of Civil Procedure as also Rule 3A of Order 23. The Supreme Court, inter alia, observed that a party challenging the compromise can file a petition under proviso to Rule 3 of Order 23 or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code.
14. The Supreme Court also observed that Section 96(3) of the Code says that no appeal shall lie from a decree passed by the court with the consent of the parties Rule 1A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest within the ground that the compromise should not have been recorded. When Section 9(3) bars an appeal against decree passed with consent of the parties it implies such a decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing an appeal under Order 43 Rule 1(m). Therefore a party who will question the validity of the compromise decree may prefer an appeal against the decree under Rule 1A(2) of Order 43 and in that case Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) of the Code is applicable to cases where the factum of compromise or agreement is not in dispute. The conclusion arrived at by the Supreme Court in the said decision is therefore that a party challenging a compromise can either file a petition under proviso to Rule 3 of Order 23 of an appeal under Section 96(1) of the Code on which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code of Civil Procedure. The view taken by this court in AIR 1982 Cal 12 (supra) is also same.
15. It will therefore appear from the above that after the amendment of the said provisions of the Code in 1976, the only forum left to the aggrieved party seeking to challenge the compromise decree is the forum or the court which passed such decree on the basis of the compromise. It therefore appears to us that in the instant case the suit filed by the plaintiffs-respondents seeking to challenge the said compromise is clearly barred by the provisions of Rule 3A of Order 23 of the Code of Civil Procedure.
16. The learned counsel appearing on behalf of the plaintiffs-respondents has relied on a decision of the Allahabad High Court reported in (5) AIR 1991 Allahabad 75. The Allahabad High Court in the said decision AIR 1991 All. 75, Suraj Kumari v. District Judge, Mirzapur has observed that the provisions of Order 23 Rule 3A of the Code of Civil Procedure is only confined to the parties to the suit. The said provision is not applicable to a stranger to the said compromise decree A suit by a stranger to set aside the compromise decree which affects his right is not barred by the said provision contained in Rule 3A of Order 23 of the Code of Civil Procedure. The Allahabad High Court has also observed that the provision in Rule 3A is only apart of the entire chapter of the Order 23 of the Code which prescribes the provisions for withdrawal and adjustment of the suit and the provisions contained in Rule 3A cannot be read decors its earlier provision. It is contended by the learned counsel appearing for the plaintiffs-respondents that admittedly the said Md. Yasin was not a party to the said Terms of Settlement being the compromise on the basis of which the decree was passed. It will, however, appear that the said Md. Yasin was not a stranger to the suit. He was very much a party being defendant No. 3 in the suit. The said Md. Yasin could have or the present plaintiffs-respondents may have a genuine ground challenging such compromise decree, but such challenge cannot be made by instituting an independent suit after the amendment in 1976 and, as has been held by the Supreme Court, the remedy of the party aggrieved with the compromise decree is either to file an appeal under Section 96(1) of the Code of which he can how question the validity of the compromise in view of Rule 1A of Order 43 of the Code, or to file a petition under proviso to Rule 3 Order 23 of the Code of Civil Procedure. Therefore, in our view no independent suit challenging the compromise on the ground of fraud or otherwise is competent in view of specific bar provided in Rule 3A Order 23 of the Code of Civil Procedure. It is true that prior to the amendment in 1976 the aggrieved party could file a suit for setting aside such compromise decree on the ground that the decree was passed on an invalid and illegal compromise not binding on the plaintiffs in the second suit, but, as held by the Supreme Court in Bamwarilai case (supra).
17. It, therefore, appears to us that only forum left to the plaintiffs-respondents is the forum which passed the decree in accordance with the said Terms of Settlement and the specific bar as provided in Rule 3A Order 23 of the Code of Civil Procedure would stand on the way of the plaintiffs-respondents filing an independent suit challenging the said compromise decree.
18. It has been-contended also on behalf of the plaintiffs-respondents the said compromise not being signed by Md. Yasin the defendant No. 3 in the said, suit is not a ‘compromise’ within the meaning of Order 23 Rule 3 of the Code of Civil Procedure. We do not want to express any opinion on this as such point is available to the party aggrieved with the said compromise decree before the forum where such compromise would be challenged.
19. We therefore set aside the order of the trial court dated 24th February, 1992 in the present suit No. 724 of 1991 (Showkatara Begum v. Morium Bibi) wherein the learned single Judge has held that the court was unable to appreciate the submission that the plaint did not disclose any cause of action or that it was hit by the provisions of Order 23 Rule 3A of the Code of Civil Procedure. We hold that the said compromise decree can be challenged by the plaintiffs-respondents on the ground of fraud or any other grounds including that the said Md. Yasin not being a party to the compromise decree the same was not binding on the said Md. Yasin as also his heirs and representatives being the plaintiffs. But such compromise decree can only be challenged not by an independent suit but by a petition under the proviso to Rule 3 Order 23 of the Code of Civil Procedure before the court which passed the said decree or by preferring an appeal from the said decree being the compromise decree. The suit No. 724 of 1991 (Musst. Showkatara Begum v. Morium Bibi) being barred by law is dismissed and the plaint be taken off the file.
20. For the reasons aforesaid this appeal is allowed.
21. There will be no order as to costs. All parties to act on a signed copy of the minutes of the operative part of this judgment on the usual undertaking.
22. Banerjea, J.: I agree.
23. S.K.G
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