JUDGMENT : By means of present writ petition, the petitioners seek writ in the nature of certiorari quashing the judgment and order dated 12.05.2009, passed by learned II Addl. District Judge, Haridwar, in Misc. Suit no. 03 of 1996 (copy Annexure 1 to the writ petition). 2. On 12.05.2009, learned II Addl. District Judge, Haridwar allowed an application under Section 5 of the Limitation Act, on payment of costs. By the same order, an application under Order 9 Rule 13 CPC read with Section 151 CPC was also allowed, on payment of costs. The suit was restored to its original number. Order dated 29.09.1993, whereby the suit was decided in terms of compromise, was set aside. 3. Feeling aggrieved against the same, the defendant-petitioners have challenged the impugned order dated 12.05.2009, passed by learned II Addl. District Judge, Haridwar. 4. In a suit filed by Gian Chand and others against Acchu Ram and others, which suit was numbered as O.S. no. 07 of 1983, parties settled their dispute amicably. An application to this effect was filed before learned Addl. District Judge, Saharanpur on 29.09.1993. The terms of settlement have already been indicated in the body of such an application. Based upon the same, the O.S. no. 07 of 1983, was decided in terms of compromise. Settlement deed was made part of the decree. It was against such a judgment and decree that an application under Order 9 Rule 13 CPC was filed by one of the defendants, who is predecessor of respondent no. 1. During the pendency of that application under Order 9 Rule 13 CPC, original defendant no. 3 died. His legal representative was brought on record. Present respondent no. 1 was impleaded in his place and is legal representative as well as the alleged trustee of Rai Bahadur Seth Chandi Ram Sindhi Dharamshala. 5. During the pendency of present writ petition, respondent no. 1 has died. Mr. Nikhil Singhal, Advocate, is representing the respondents. During the pendency of present writ petition, respondent no. 3 has also died. Since respondent no. 3 was a trustee, therefore, no one was substituted on his behalf. When respondent no. 1 died, this fact was brought to the notice of the Court by the petitioner and this Court on 22.10.2013, passed the following order: “…Since the trustees have died the writ petition cannot be continued against the dead persons. Since respondent no. 3 was a trustee, therefore, no one was substituted on his behalf. When respondent no. 1 died, this fact was brought to the notice of the Court by the petitioner and this Court on 22.10.2013, passed the following order: “…Since the trustees have died the writ petition cannot be continued against the dead persons. Civil miscellaneous application is allowed. The petitioner is directed to file amended memo of the parties within a period of one week…” 6. Thereafter, amended memo of parties was filed by the petitioners noting ‘dead’ as against respondent nos. 1 and 3. Respondent no. 1 was represented by a counsel Mr. Anurag Bisaria, and application of the petitioners was not opposed by him. This fact may be underlined that respondent nos. 1 and 3 were arrayed as such in the capacity of trustees of Rai Bahadur Seth Chandi Ram Sindhi Dharamshala. 7. When interim stay application was pressed on behalf of the petitioners, this Court passed the following order on June 08, 2009: “…Learned counsel for the petitioners pointed out that the application moved under Order IX Rule 13 of the Code of Civil Procedure, 1908, is entertained after a period of two years of passing the decree. It is further pointed out that the defendant had moved the application that he had no knowledge of the suit while he was actually represented through his counsel in the proceedings of the suit. In the circumstances, the operation of the order dated 12.05.2009, passed by II Addl. District Judge, Haridwar, in Misc. Case no. 03 of 1996, shall remain stayed, until further orders of this Court.” 8. This fact is under no dispute that it was a compromise decree against which an application under Order 9 Rule 13 CPC was filed. The ambit of Order 9 Rule 13 CPC is different, inasmuch the application is filed against setting aside decree ex parte against the defendant. In the instant case, an ex parte decree was not passed against the defendant. Instead, the decree was passed on the basis of compromise. The ambit of Order 9 Rule 13 CPC is different, inasmuch the application is filed against setting aside decree ex parte against the defendant. In the instant case, an ex parte decree was not passed against the defendant. Instead, the decree was passed on the basis of compromise. He should have taken recourse to appropriate remedy before the appropriate forum, but an application under Order 9 Rule 13 CPC was certainly not the remedy, for, Order 9 Rule 13 CPC may be taken recourse to if the defendant satisfies the Court that the summons was not duly served upon him or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Learned court below has given a finding that the decree was obtained by the parties by playing fraud and, therefore, such decree is a nullity, and, therefore, set aside the ex parte decree. 9. It will be appropriate to mention paragraph 13 and 14 of the judgment rendered by Hon’ble Apex Court in Banwari Lal vs Chando Devi (through L.R.) and another, AIR 1993 SC 1139 , here-in-below: “13. When the amending Act introduced a proviso along with an explanation to Rule 3 of O. 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, “the Court shall decide the question”, the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise “which is void or voidable under the Indian Contract Act….” shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even R. 1(m) of O. 43 has been deleted under which an appeal was maintainable against an order recording a compromise. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even R. 1(m) of O. 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to R. 3 of O. 23, or an appeal under S. 96(1) of the Code, in which he can now question the validity of the compromise in view of R. 1A of O. 43 of the Code. [Emphasis supplied] 14. The application for exercise of power under proviso to R. 3 of O. 23 can be labelled under S. 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to R. 3. It has been held by different High Courts that even after a compromise has been recorded, the Court concerned can entertain an application under S. 151 of the Code, questioning the legality or validity of the compromise. Reference in this connection may be made to the cases Smt. Tara Bai v. V.S. Krishnaswamy Rao, AIR 1985 Kar 270 ; S.G. Thimmappa v. T. Anantha, AIR 1986 Kar 1 ; Bindeshwari Pd. Chaudhary v. debendra Pd. Singh, AIR 1958 Pat 618 ; Mangal Mahton v. Behari Mahton, AIR 1964 Pat 483 and Sri Sri Iswar Gopal Jew v. Bhagwandas Shaw, AIR, 1982 Cal 12, where it has been held that application under S. 151 of he Code is maintainable. The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that Court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to R. 3 and as such not lawful. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to R. 3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have been recorded such agreement or compromise on 27.02.1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of R. 3, there was no option left except to recall that order.” 10. There is another aspect of the case. Order 43 Rule 1-A CPC provides for right to challenge non-appealable orders in appeal against decrees. The same reads as under: “1-A. Right to challenge non-appealable orders in appeal against decrees. –(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) 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.” 11. Thus, two courses available to the aggrieved party (respondent no. 1) are, firstly filing an appeal and, secondly, move an application for recall of such order. It was, therefore, not open to defendant no. 3 to move an application for setting aside the compromise decree under Order 9 Rule 13 CPC. 12. Learned counsel for respondents has not objected to setting aside of the impugned order as prayed for by learned counsel for the petitioners, inasmuch as they have already entered into compromise and they have not challenged the compromise decree. 13. Writ petition is, accordingly, allowed. Order impugned dated 12.05.2009, passed by learned II Addl. District Judge, Haridwar in Misc. Case no. 03 of 1996 is hereby set aside.