Rajiv vs M.Narayanan Nambiar (Died)
2021 Latest Caselaw 2060 Mad

Citation : 2021 Latest Caselaw 2060 Mad
Judgement Date : 1 February, 2021

Madras High Court

Rajiv vs M.Narayanan Nambiar (Died) on 1 February, 2021

                                                                      C.R.P.(NPD)No.646 of 2005

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 01.02.2021

                                                      CORAM

                                   THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                             C.R.P.(NPD).No.646 of 2005
                                             and C.M.P.No.4757 of 2005

                     Rajiv                                                 ... Petitioner

                                                         Vs.
                     1. M.Narayanan Nambiar (died)
                     2. K.M.Deviammal
                     3. Saraswathy
                     4. Pankajam
                     5. Mallika
                     6. Susila
                     7. Bhanumathi
                     8. Chitra
                     9. Vidya
                     10. Meera
                     11. Vinod
                     12. Manoj
                     13. Leena
                     14. Surendran
                     15. Shobana
                      (R3 to 15 brought on record as LRs of
                     the deceased first respondent vide Court
                     Order dated 01.02.2021 made in
                     CMP.Nos.1054, 1055 and 1056 of 2012
                     in C.R.P.No.646 of 2005)                              ... Respondents



                     Page 1 of 8


https://www.mhc.tn.gov.in/judis/
                                                                               C.R.P.(NPD)No.646 of 2005

                     Prayer :- Civil Revision Petition is filed under Section 115 of C.P.C., to set
                     aside the fair and decretal order dated 16.08.2004 in I.A.No.73 of 2004 in
                     O.S.No.595 of 2003 on the file of the Principal District Munsif, Namakkal.
                                              For Petitioner   : Mr.R.Natrajan
                                              For Respondents
                                                    R1 & R2    : Died
                                               For R 3 to R 14 : No appearance
                                               For R15 & R16 : Mr.V.Vijaya Kumar
                                                             ORDER

This Civil Revision Petition is directed as against the fair and

decretal order dated 16.08.2004 passed by the learned Principal District

Munsif, Namakkal, in I.A.No.73 of 2004 in O.S.No.595 of 2003, thereby

dismissing the petition filed by the petitioner for rejection of plaint.

2. The petitioner is the seventh defendant in the suit filed by the

respondents 1 & 2 for declaration declaring that the decree passed in

O.S.No.388 of 2002 on the file of the Sub Court, Namakkal dated

27.09.2002 is not binding on the respondents as a void one affected by

fraud. The respondents are the plaintiffs in the suit in O.S.No.388 of 2002

for partition, on the file of the Sub Court, Namakkal. A compromise was

arrived between the parties and on the basis of the compromise and in terms

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.646 of 2005

of the said compromise memo that too in the presence of all the parties, the

suit was decreed by the learned Subordinate Judge, Nammakkal. Now the

said decree was challenged by way of the present suit on the ground that the

decree was obtained on fraud and as such, the decree in O.S.No.388 of 2002

is not binding on the respondents herein.

3. The learned counsel appearing for the petitioner would submit

that the respondents questioning the validity of the compromise decree

passed in O.S.No.388 of 2002. After amendment of the Civil Procedure

Code in the year 1976, under Order 23 Rule 3A, there is a bar from filing

the suit, since the decree under challenged is based on the compromise

entered between the parties. He further submitted that even then, the said

decree can be challenged under Order 43 Rule 1 A of C.P.C., by way of

appeal.

4. Heard, Mr.R.Natarajan, learned counsel appearing for the

petitioner. The respondents 1 & 2 died and the legal heirs of the deceased

respondents are brought on record. Though notices served to legal heirs of

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.646 of 2005

the deceased respondents 1&2 and their name printed in the cause list, no

one appeared either by person or through pleader.

5. The only ground raised by the learned counsel appearing for

the petitioner is that the respondents filed suit for partition and on the

strength of the compromise entered between the parties, it was decreed by

the judgment and decree dated 27.09.2002, on the file of the Sub Court,

Nammakkal. Again the said decree is under challenge in the present suit on

the ground that the said decree was obtained by fraud and as such the same

should be declared as null and void. Therefore, the petitioner filed petition

to reject the plaint on the ground that the suit itself barred to challenge the

compromise decree passed in O.S.No.388 of 2002. It is relevant to extract

the provisions under Order 23 Rule 3A of C.P.C., as follows :-

"3-A. 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"

Therefore, no suit shall lie to set aside the compromise decree on the

strength of the compromise entered between the parties.

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.646 of 2005

6. After the amendment of C.P.C., under Order 43 Rule 1A, there is a provision to challenge non-appealable order in appeal against decree. It is relevant to extract the provisions under Order 43 Rule 1-A of C.P.C., as follows :-

"1-A. Right to challenge non-appealable order in appeal against decree - (1) Where any order is made under this Code against aparty 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."

It is clear that it is open to the parties to contest compromise decree, should

be or should not be recorded, by way of appeal. Therefore, the suit filed by

the respondents is barred under law and it cannot be sustained further and

the order passed by the trial Court is perverse and liable to be set aside.

https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.646 of 2005

7. In view of the above discussion, this Civil Revision Petition is

allowed and the order dated 16.08.2004 passed by the learned Principal

District Munsif, Namakkal, in I.A.No.73 of 2004 in O.S.No.595 of 2003, is

hereby set aside. There shall be no order as to costs. Consequently,

connected miscellaneous petition is closed.

01.02.2021

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