Judgment :- S. Marimuthu, J. The appeal is directed against the judgment delivered by the Subordinate Judge of Payyannur in O.S.64 of 1990. The plaintiff is the appellant and the plaintiff and the defendants are brothers and sister. The first defendant and the 3rd defendant died and their legal representatives have been brought on record as respondents. The suit was filed by the appellant for partition of 1/4th share in plaint items 1 to 8 and 1/2 share in item No. 9. The case of the appellant was culled out from the plaint averment a mi documents filed on her side is summarised herein: The plaint items 1 to 8 were set apart to the appellant and her brothers and sister who were defendants 1 to 3 in partition a1ongwith her mother and her mother Madhavi was the sole owner of item No. 9. The mother before her death on 6.12.1984, executed Ext. Al will on 11.2.1974 in which the present item No. 9 shown as item No. 2 was bequeathed in equal rights to the appellant and the third respondent. Aggrieved by the execution of the Will, the first defendant filed a suit after issue of notice for partition in O.S. No. 230 of 1985 impleading his brother and sisters as defendants. In the suit, the present appellant entrusted the entire matter in respect of her claim to the 2nd respondent and in fact the present appellant had reposed confidence in her sister, 2nd respondent. The appellant did not sign any vakalath nor did she engage any advocate to appear on her behalf in the suit. However, the appellant came to know that a compromise had been arrived at in the suit as per which in item No. 9 measuring 9 3 cents, 361/4 cents had been set apart to the appellant, 34 cents to the third respondent and 10 cents and yard to the first respondent. The appellant never agreed to any such compromise nor had she signed the compromise memo and she never authorised any counsel to appear on her behalf in the said 'compromise. Fraud has been perpetrated in the compromise by the 2nd respondent, in whom, she had reposed confidence. Compromise decree was never implemented. The delivery said to have been effected in the compromise decree is a symbolic one and all the appellant and respondents are in joint possession of the items. Fraud has been perpetrated in the compromise by the 2nd respondent, in whom, she had reposed confidence. Compromise decree was never implemented. The delivery said to have been effected in the compromise decree is a symbolic one and all the appellant and respondents are in joint possession of the items. In the circumstances, the present suit for partition was instituted. 2. The deceased first defendant/first respondent remained ex-parte and the written statement of the 2nd respondent would be that the appellant was properly represented by her advocate in the earlier suit and she gave instructions to her counsel. She also agreed to the compromise decree and the delivery effected in that suit, was an effective one and not a symbolic delivery. As per the compromise decree, the parties have been in possession of their respective shares. Third respondent was residing with the appellant. This is fit suit for dismissal. The trial Court after examining the contentions of both sides dismissed the suit on the only ground that the present suit is hit by principles of res judicata on account of the decree passed in O. S. No. 23 0 of 1985. Now the above decree comes up before this Court for consideration and decision. 3. Learned counsel appearing for the appellant advanced his argument on two-folds, viz, that the documents and the ocular testimony projected by the witnesses were not properly appreciated by the court below and therefore, the judgment of the court below calls for an interference by this Court in this appeal and as alternative, on the second fold, his submission would be that the compromise decree was passed in O.S. No. 230 of 1985 without her knowledge and in fact, she never agreed to the compromise and therefore, she is not bound by the compromise decree. However, she would move before the Munsiff", Taliparamba an application under O. XXIIIR. 3 of the Code of Civil Procedure to decide the question as to the validity of the adjustment or satisfaction of the compromise decree arrived at in the above suit. That right was not already availed of by the appellant before the trial court. However, she would move before the Munsiff", Taliparamba an application under O. XXIIIR. 3 of the Code of Civil Procedure to decide the question as to the validity of the adjustment or satisfaction of the compromise decree arrived at in the above suit. That right was not already availed of by the appellant before the trial court. Since this appeal is a continuation of the suit, the matter can be remanded back to the trial court permitting the appellant to avail that right by way of an application for a decision as to the validity of the compromise decree passed under O. XXIII R.3 of Code of Civil Procedure. It was also incidentally submitted by the learned counsel for the appellant that the compromise decree does not attract the provision of S.11 of Code of Civil Procedure. Therefore, the plea raised by the defendants/respondents that the suit is hit by the principles of res judicata is not correct and cannot be acted upon. 4. On the other hand, the above submissions of the learned counsel for the appellant were opposed by counsel appearing for the defendants/respondents that the present suit is barred by res judicata and according to him, the court below has properly scrutinised the evidence, both documentary and oral, and the conclusion arrived at thereon is perfectly correct and it needs no interference by flu's Court. It was also submitted on the respondents' side that the compromise decree is a validly obtained decree and that it has been properly executed and in the execution, actual delivery was effected and then it was recorded. The appellant being a party to it cannot challenge the compromise decree as well as its execution. It is also submitted by him that the present suit is barred by R.3A of O. XXIII of the Code of Civil Procedure. 5. On account of the above divergent contentions raised on both sides, the following points can be urged for decision: (i) Whether the suit is hit by the principle of res judicial? (ii) It' not, whether the judgment of the lower court can be sustained? (iii) Whether there arises an inevitable circumstance to remand the matter to the court below permitting the appellant to move an application to challenge compromise decree as per the provisions in R.3 of O. XXIII of the Code of Civil Procedure? 6. (ii) It' not, whether the judgment of the lower court can be sustained? (iii) Whether there arises an inevitable circumstance to remand the matter to the court below permitting the appellant to move an application to challenge compromise decree as per the provisions in R.3 of O. XXIII of the Code of Civil Procedure? 6. Point No. (i) : S.11 of the Code of Civil Procedure reads as follows: "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly' and substantially in issue in a former suit between the same parties, or between parties under whom the or any of them claim, litigating under the same the, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." The Supreme Court in an earlier decision reported in Subba Rao v. Jagannadha Rao, and Ors. (AIR 1967 SC 591) held that a decree passed on compromise is not a decision by the Court and therefore, the compromise decree does not operate as res judicata under S.11 of Code of Civil Procedure. However, the plea of estoppel as provided under S.115 of the Indian Evidence Act is left open, if raised by the concerned parties. In the instant case, it is admitted ground raised on behalf of the respondents that O.S. No. 230 of 1985 on the tile of the District Munsiff, Taliparamba ended in a compromise decree to which the appellant is also an agreeing party. On account of the above principle laid down by the Supreme Court, the compromise decree even if it is taken as admitted by the appellant for the sake of discussion, will not operate as res judicata against instituting the present suit. 7. The next point is whether the appellant is estopped by the above compromise decree. The initial burden rests on the defendants/ respondents who rely upon the compromise decree, to prove that the appellant is an agreeing party to the compromise and the compromise decree was validly passed by the Court below and no fraud or collusion was penetrated in passing the compromise decree. When the respondents have established the same, the burden shifts on the appellant to establish that the compromise decree was obtained by penetrating fraud or collusion without her knowledge. When the respondents have established the same, the burden shifts on the appellant to establish that the compromise decree was obtained by penetrating fraud or collusion without her knowledge. Respondents, to substantiate that the compromise decree was a valid one. mainly relies upon the oral evidence of DW2, Shri. P. Muthukrishna Kurup, Advocate, who according to the respondents, represented the appellant in the compromise suit. In addition to it, they also rely upon the oral testimony of DWs. 3 and 4 who were also advocates appearing in O.S.230 of 1985 and also the oral evidence of the 2nd defendant examined as DWI. Learned counsel appearing for the appellant in this context would submit that a reading of the evidence of DW2 would signify that in his presence, no compromise was arrived at. However, he has filed the Vakalath on behalf of the appellant and the oral testimony of DWI is evasive with reference to the compromise decree. He also pointed out the oral testimony of DW3 and 4, the other advocates and their evidence are also not so clear in respect of the alleged compromise. On the other hand, the counsel for the respondent submitted that all the advocates examined as DWs 2 to 4 are senior and respectable advocates in that Bar and there is no jurisdiction at all to reject their evidence and their ocular testimony would signify that in their presence that the compromise was arrived at and they represented the appellant in the suit and in the compromise and the decree was accordingly, passed and therefore, at no stretch of imagination, the oral testimony of the witnesses examined on the respondents' side, particularly those of the advocates can be doubted. I examined the evidence of the advocates as DW2 to 4 in the light of the rival submissions put forward by both the learned counsel stating supra, and on my examination, I do not find any reason or justification to reject the evidence of advocates, particularly, DW2 who was appearing for the appellant in the court below. No doubt, there are some inconsistencies and some. of the answers of the Advocates recorded in the depositions are not so clear. However, a broad outlook and examination of their oral testimony would evince that the compromise has been arrived at with consent of all the parties. No doubt, there are some inconsistencies and some. of the answers of the Advocates recorded in the depositions are not so clear. However, a broad outlook and examination of their oral testimony would evince that the compromise has been arrived at with consent of all the parties. I also find no ground that fraud has been penetrated in arriving at the compromise as between the parties who are none other than the sisters and brothers. 8. The next submission advanced on the appellant is side would be that the delivery was not actually effected and it needs some investigation whether execution was properly done by the Court below. When such a contention has been raised by the learned counsel for the appellant, the B Diary of the Court below was sent for and it was thoroughly checked up in Open Court in the presence of both the advocates and during the examination of B Diary, I found that the entries made thereon did not lack bona fides and have been properly entered in a course of judicial proceedings. That is to say, I do not find any infirmities in those entries and the entries have been made correctly, as pointed out earlier and delivery has been properly effected as per procedure and thereafter, it has been recorded. 9. Learned counsel appearing for the respondents would submit mat the present suit is hit by R.3A O. XXIII of Code of Civil Procedure on account of the compromise decree in the earlier suit. R.3A reads as follows: "R.3A. bar to suit: no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful". As against the above submission of the learned counsel for the respondents, learned counsel for the appellant submitted that the suit is perfectly maintainable in view of the provisions enjoined in S.96 and O.XLIII R.1A(2) of the Code of Civil Procedure. S.96(1) reads as follows: "96(1) Appeal from original decree: (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court." 0. S.96(1) reads as follows: "96(1) Appeal from original decree: (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court." 0. XLIII R.1A(2) reads as follows: "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". In support of the above statutory provisions laid down in the Code of Civil Procedure, learned counsel for the appellant also placed reliance on the principle laid down by the Supreme Court in Banwari Lai v. Chando Devi (AIR 1993 SC 1139) wherein the Supreme Court has held that the aggrieved party can move an application before the Court which passed the compromise decree questioning the validity of the compromise under O. XXIII R.3 or he can prefer an appeal under S.96(1) and O. XLIII R.1A(2) of the Code of Civil Procedure questioning the validity of the compromise decree. In view of the principle laid down in the above citation, it is evident that the appellant would have filed an application questioning the compromise decree in O.S.230 of 1985 or she could have filed an appeal questioning the compromise decree. Both the options were readily available to the appellant. But the appellant did not avail any one of them. Counsel for the appellant, however, contended that in case this Court is not inclined to accept the above submissions challenging the decree passed by the Court below, the appellant can be permitted to withdraw the suit under O. XXIIIR.1 of the Code of Civil Procedure with liberty to move an application under O. XXIII R.3 of the Code of Civil Procedure in O.S. No. 230 of 1985. But as we know, it is well settled proposition of law that the plaintiff can be permitted to withdraw the suit with liberty to file a fresh suit when there is only a formal defect in the plaint. But as we know, it is well settled proposition of law that the plaintiff can be permitted to withdraw the suit with liberty to file a fresh suit when there is only a formal defect in the plaint. Instead of it, when a fatal defect has erupted in the institution of a suit in the trial Court, no liberty can be granted to file a fresh suit. But the permission herein sought for is to file an application under O. XXIIIR. 3 of the Code of Civil Procedure in O.S.230of 1985. For filing such application, the appellant need not have asked the permission of this Court and it is always left open to the appellant to move such application in O.S.230 of 1985, if law permits. In such a case when law does permit, the court is at liberty to entertain the application and consider the same in accordance with law and on merits. 11. On account of the foregoing reasons, point No.1 is answered in favour of the appellant and point Nos. 2 and 3 are decided against the appellant. In the result, the appeal stands dismissed directing the parties to suffer their respective costs.