Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 1185 (MP)

Dinesh Sharma v. Ramprasad Pujari Dharmik Trust

2007-11-13

RAJENDRA MENON

body2007
ORDER 1. This application under Order 47 (1) Rule 1 CPC is filed for review of order dated 15.11.2006 passed by this Court in First Appeal No. 565/ 2005. 2. Respondents No. 1 to 7 filed First Appeal No. 565/2005 being aggrieved by judgment and decree dated 9.9.2005 passed by the District Judge, Morena in Civil Suit No. 5A/2001, when the matter came up for hearing on 5.11.2006 at the stage of admission of the first appeal, both the parties i.e. plaintiffs and respondents in suit in question filed IA No. 18559/2006 and submitted that as the matter is compromised between the parties appeal is now rendered infructuous in view of the compromise. Accordingly appeal was dismissed as having been rendered infructuous, in view of the compromise entered into between the parties. Inter alia contending that compromise was done in an illegal manner it adversely effect the right of the trust in question and public at large, seeking review of the order passed in FA No. 565/2005 this application is filed. 3. On notice being issued Shri V.K. Bharadwaj, counsel appears and opposes the application on the ground that applicants hereinabove Dinesh Sharma and others were neither parties to the civil suit nor were they parties in the first appeal and therefore, it is argued that they have no right to file the review, if they are aggrieved by the judgment and decree passed on the basis of compromise it is submitted by Shri V.K. Bharadwaj, learned counsel for respondents that petitioner should file a separate suit challenging the compromise judgment and decree and review of the order by a party who is not party to the proceedings and is a stranger, according to Shri V.K. Bharadwaj, learned counsel for respondents is not maintainable. 4. Shri Vijay Sundram, learned counsel for petitioner refutes the aforesaid and submits that as the compromise is entered on incorrect fad petitioners have a right to file review. Placing reliance on following two judgments he prays for recall of the order. Judgments relied by Shri Vijay Sundram, Advocate are Smt. Suraj Kumari v. District Judge, Mirzapur and others [AIR 1991 Allahabad 75] and Ramkaran v. Shrikishan and others [AIR 1976 Rajasthan 130]. 5. Placing reliance on following two judgments he prays for recall of the order. Judgments relied by Shri Vijay Sundram, Advocate are Smt. Suraj Kumari v. District Judge, Mirzapur and others [AIR 1991 Allahabad 75] and Ramkaran v. Shrikishan and others [AIR 1976 Rajasthan 130]. 5. In support of his contention Shri Y.K. Bharadwaj, learned counsel for respondents also relied upon various judgment as under: (i) Bharat Singh v. Firm Sheo Pershad Gianiram and others [AIR 1978 Delhi 122]. (ii) Bangalore Development Authority and etc. v. P. Anjanappa (since deceased by L.Rs.) and others [2004 AIHC 534]. (iii) Smt. Anita v. R. Rambilas [AIR 2003 Andhra Pradesh 32]. (iv) Pujya Sindhi Panchayat v. Prof C.L. Mishra and others [AIR 2002 Rajasthan 274]. 6. I have heard learned counsel for parties at length and perused the record. From the records it is clear that the present application is filed for seeking review of the order passed in F.A. No. 565/2006, petitioners are neither party in the civil suit nor in first appeal that being so in case they are aggrieved by the judgment and decree they have right to challenge the same by filing separate suit and seek declaration that the judgment and decree obtained by compromise is null and void and cannot be enforced against the petitioner. The judgment in the case of Ramkaran (supra) rendered by the Rajasthan High Court is distinguished in that case the parties seeking review were parties to the proceeding and some of parties had entered in the compromise without the consent of applicant who sought the review. 7. By placing reliance on Order 23 Rule 3A CPC Shri Vijay Sundram has argued that right to file a suit is not available to the petitioner and therefore, only a review application is maintainable. The question as to whether the provisions of Order 23 Rule 3A of CPC is applicable to a stranger to the compromise decree is considered by the Allahabad High Court in the case of Suraj Kumari (supra) and it has been held that the said provision is not applicable to a stranger to the said compromise decree. It has been also held that a suit by a stranger to set aside the compromise decree, with effect to his right is not barred by the said provision. It has been also held that a suit by a stranger to set aside the compromise decree, with effect to his right is not barred by the said provision. It has been further held that the entire chapter of Order 23 has to be read together and the amending provision has to be read along with the other provisions and combined reading of all these provisions make it clear but it is only a party to the suit which is debarred from filing a separate suit for setting aside the compromise decree. The said provision does not bar a person who is not party to the said compromise decree to file a separate suit. 8. Accordingly, keeping in view the principle of law laid down by the Allahabad High Court in the case of Suraj Kumari (supra) no case is made out for review on the grounds raised in this application. 9. Accordingly, keeping in view the facts and circumstances of the case and taking note of the fact that petitioner has a remedy to file separate suit, I see no reason to interfere in the judgment and decree passed on the basis of compromise. Petitioner is at liberty to file separate suit in accordance with law. 10. Accordingly, finding no error apparent on the face of record and finding no ground made out for review or recall of the order, application stands dismissed.