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2009 DIGILAW 341 (CAL)

Asish Das v. Sudhansu Dey

2009-04-29

JYOTIRMAY BHATTACHARYA

body2009
JUDGMENT 1. The petitioner's suit challenging the compromise decree passed in the earlier suit between the same parties, was dismissed on contest by the impugned order, on a preliminary issue regarding its maintainability because of the bar created under order 23 Rule 3A of the Civil Procedure Code. 2. The said order is under challenge in this application under Article 227 of the Constitution of India, before this Court, at the instance of the plaintiff/petitioner herein. 3. Having heard the learned Advocates for the parties and after considering the materials on record including the impugned order, this Court holds that dismissal of the suit on the preliminary issue amounting to decree, is not revisable under Article 227 of the Constitution of India, as such an order is appealable under the Code. Even then this Court has no hesitation to hold that the learned Trial Judge, did not commit any illegality in passing the impugned order as Order 23 Rule 3A of the Civil Procedure Code makes it clear that in suit cannot be maintained for challenging a compromise decree passed in the earlier suit even on the ground that the compromises on which the decree was based, was not lawful. 4. In view of the decisions of this Hon'ble Court in the case of Ashis Kr. Ghosh vs. Gopal Chandra Ghosh, reported in 2004(3) CHN 146 and in the case of Jnanendra Chandra Nath vs. Pabitra Bhowmich, reported in 1992(1) CLJ 130, this Court holds that a compromise decree can only be challenged in the mode as prescribed under order 43 Rule 1A of the Code of Civil Procedure and not by a separate suit. 5. Under such circumstances, this Court does not find any justification to interfere with the impugned order. The revisional application is thus, rejected. 6. This order, however, will not preclude, the petitioner from challenging the propriety of the compromise decree passed in the earlier suit between the same parties, in appropriate forum, in accordance with law. 7. It is also made clear that while disposing of this revisional application this Court has not considered the merit of the compromise decree passed in the earlier suit between the same parties. Appeal dismissed.