P. K. Jain, J.
1. This is plaintiffs second appeal against the judgment and decree passed by the trial court dismissing the Original Suit No. 155 of 1989 and the decree of the lower appellate court affirming the judgment and decree of the trial court.
2. In short, the facts are that the Small Cause Suit No. 18 of 1987 which was filed against the present appellants by the Gaur Brahman Sabha, Kashipur-respondent No. 1 was decreed in terms of compromise dated 24.7.1987. The present plaintiffs/appellants filed Suit No. 155 of 1989 for cancellation of the decree dated 24.7.1987 in the said suit on the ground that the compromise was obtained by coercion, fraud, etc. The trial court dismissed the suit mainly on the ground that the suit was not maintainable in view of the provisions of Order XXIII, Rule 3A of the Code of. Civil Procedure. The plaintiffs appellants preferred an appeal. The lower appellate court re-appraised the evidence and recorded a finding of fact that the compromise decree was not obtained by playing fraud or by exercise of undue coercion upon the plaintiffs. The lower appellate court also held that the suit was not maintainable. The lower appellate court consequently dismissed the appeal.
3. Sri Murli Dhar, learned senior counsel appearing for the appellants has been heard at length at the admission stage. He has submitted that there are conflicting decisions whether in such cases the provisions of Rule 3A of Order XXIII. C.P.C, were attracted or not. He has also submitted that the trial court had not recorded the finding on the question whether the compromise was obtained by playing fraud and exercising coercion. The lower appellate court should have, therefore, remanded this matter to the trial court,
4. Having heard learned counsel for the appellants and having gone through the two judgments of the Courts below. I find that there is no merit in this appeal. It is true that the trial court framed issue No. 1 to the effect that whether compromise dated 24.7.1987 was not legal. The trial court, however, did not record any finding on this issue even though evidence of the parties was there. The trial court relying upon a decision of the Hon'ble Supreme Court in Banwari Lal v. Smt. Chando Devi, AIR 1993 SC 1139, held that the suit was not maintainable. The lower appellate court, however, recorded finding on issue No. 1 after examining the evidence adduced by the parties. In arriving its finding, the lower appellate court, besides considering other evidence, had placed reliance upon two material facts, viz., a term of the compromise decree was that a defendant shall vacate the suit property on expiry of two years from the date of the compromise and in that event the plaintiff in Suit No. 18 of 1987 will not claim any arrears of rent damages from the defendants in that suit. The lower appellate court had observed in its judgment that a sum of Rs. 1,000 was deposited by the defendants as arrears of rent and mesne profits in the trial court to escape consequences of decree of the ejectment. After the said compromise was entered into between the parties, the present plaintiffs/appellants moved an application 37C for refund of the said amount on the ground that with the intervention of certain persons, a compromise has beenarrived at and that the defendants applicants have been granted time till 1.8.1989 to vacate the suit property and further that the plaintiffs have exonerated the defendants from the liability of arrears of rent, expenses of litigation, etc. Another circumstance or material evidence relied upon by the lower appellate court was that even though there were allegations of coercion and it was alleged that the police had forced the defendants to enter into compromise on threat of being implicated in certain cases, yet the plaintiffs allowed the two years' period to lapse and it was only after lapse of the said period that they filed the present suit. The evidence of the parties was already there, the lower appellate court, in my view, committed no error in appraisal of the evidence and in recording the fact on issue No. 1. It has been fairly conceded that the finding on issue No. 1 cannot be challenged on ground of its suffering from perversity. In the circumstances, if the lower appellate court scrutinized the evidence and on appraisal of the same had recorded findings of fact, the lower appellate court cannot be said to have acted with illegality in not remanding the matter to the trial court. Therefore, in my view, there is no force in the submission of the learned counsel for the appellants that the lower appellate court in the facts and circumstances of the present case should have remanded the matter to the trial court.
5. Now coming to the main question whether in the facts and circumstances of the present case, the provisions of Rule 3A of Order XXIII, C.P.C. are attracted or not, it would be proper to reproduce the provisions contained in Order XXIII. Rule 3A and Explanation to Order XXIII. Rule 3. Rule 3A reads as follows :
'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.'
Explanation to Rule 3 of Order XXIII reads as follows :
'An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.'
6. A compromise decree in the instant suit was challenged on the ground that it was obtained by playing fraud and exercise of coercion. Such a compromise is voidable under the provisions of the Indian Contract Act. The Explanation to Rule 3 as quoted above, declares that a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of Rule 3. If the provisions of Rule 3A are read with Explanation to Rule 3, it would be abundantly clear that a compromise obtained by playing fraud or exercise of coercion is not a lawful compromise and, therefore, suit for setting aside the decree on such a ground is barred by the provisions of Rule 3A of Order XXIII. There is thus no ambiguity. It is true that the decree in a suit passed in accordance with the compromise is not appealable under section 96 of the Code of Civil Procedure. Earlier such a decree was appealable under Order XLIII (1) Cm). By subsequent amendment. Order XLIII, Rule 1 (m) has been deleted. However, another Rule 1A has been introduced in Order XLIII. The said Rule 1A provides that 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 such party may in an appeal against the decree, contend that such order should not have been made and judgment should not have been pronounced. Sub-rule (2) of Rule 1A provides that 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 compromise should, or should not, have been recorded. Thus, if a decree passed under Order XXIII. Rule 3. C.P.C. was challenged. It would have been challenged by filing appeal under Order XLIII. Rule 1A.
7. The trial court while holding that the suit was not maintainable has relied upon the decision of the Apex Court in Banwari Lal v. Smt. Chando Devi and another. AIR 1993 SC 1139, That was a case in which a compromise petition was filed on behalf of the appellant staling that both the parties have entered into a compromise on the basis of which the appellant had delivered possession of the land to the respondent. A prayer was made in view of the compromise arrived at between the parties the suit be dismissed. The compromise petition had not been signed by the contesting defendant or by his counsel. An endorsement was made by one Sri Soran Ram. Advocate that 'thumb impression has been marked in my presence.' The trial court on the statement of the counsel of the plaintiff that the suit of the plaintiff be dismissed as withdrawn as per compromise deed Exhibit-C and that possession of the property has already been delivered to the defendant and that defendant No. 2 Smt. Chando Devi is in possession of the disputed land as owner as per compromise deed directed that the suit of the plaintiff is dismissed as per compromise deed Exhibit-C and decree-sheet be prepared accordingly. The plaintiff/appellant thereafter filed an application alleging that the counsel Sri Soran Ram, Advocate in collusion with defendant No. 2 had played fraud on the appellant by filing a fabricated petition of compromise although no compromise had been effected between the appellant and the respondent. The details of the fraud were mentioned in the said petition and it was alleged that since the compromise itself was void, illegal and against the requirement of Rule 3 of Order XXIII of the Code of Civil Procedure, the order regarding such compromise be recalled and the suit be restored and be heard on merit. The trial court having heard learned counsel for the parties and considering the various circumstances recalled the order disposing of the suit in terms of the compromise and he directed restoration of the suit to its original number. Against the order passed bythe trial Judge, a revision was filed before the High Court by the defendant and a single Judge of the High Court set aside that order holding that the alleged compromise application was really an application for withdrawal of the suit under Order XXIII. Rule 1 of the Code and as the plaintiff had voluntarily withdrawn the suit, there was no occasion to recall the order treating it to be an order under Order XXIII, Rule 3 of the Code. The plaintiff thereafter filed civil appeal before the Apex Court. The Apex Court on consideration of the provisions of Explanation to Rule 3 and Rule 3A held that 'a suit used to be filed for setting aside such decree on ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order XXIII. As such a right has been giuen under Rule 1A (2) of Order XLIII to a party who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.'
The Court further held that the order on the face of it purported to dismiss the suit on basis of the terms and conditions mentioned in the petition of compromise. As such, the validity of the order has to be judged treating it to be an order deemed to have been passed in purported exercise of the power conferred on the Court by Rule 3 of Order XXIII of the Code. Learned subordinate Judge should not have accepted the said petition of compromise even it had no knowledge of fraud alleged to have been practised on the appellant by his counsel, because admittedly the petition of compromise had not been signed either by the respondent or his counsel. This fact should have been discovered by the Court. The Courtfurther held that 'as such a party challenging a compromise can file a petition under the proviso to Rule 3 of Order XXIII or appeal under Section 96(1) of the Code in which he can now question the validity of the compromise in view of Rule 1A of Order XLIII of the Code.'
8. It is true as suggested by Sri Murli Dhar, learned senior counsel that in the case before the Supreme Court, as the fact stated above disclosed, the question was whether application for recalling the decree or order accepting the compromise was an application under Order XXIII, Rule 3. C.P.C. or under Order XXIII, Rule 1. C.P.C. The Court held that it was an application under the Explanation of Order XXIII, Rule 3, C.P.C. But the Court also held on consideration of the provisions of Rule 3A that suit challenging the compromise decree as invalid and illegal was barred by provisions of Rule 3A.
9. Reference has also been made to a decision of the Karnataka High Court in S. G. Thimmappa v. T. Anantha and others, AIR 1986 Kar., in which it was held that Rule 3A of Order XXIII does not include suits where the compromise decree is challenged on grounds like void undue influence coercion by which the decree can be avoided treating it as voidable. With great respect, it may be pointed out that while holding that till the decree is avoided or displaced, it can be treated as lawful for the limited purposes of Order XXIII, Rule 3. C.P.C.. the Court did not notice the provisions of the Explanation to Rule 3 of Order XXIII. Besides this. In view of the decision of the Hon'ble Supreme Court in Banwari Lal's case (supra), the decision in S. G. Thimmappa's case (supra) rendered by Karnataka High Court stands impliedly overruled and is no more good law. S. G. Thimmappa's case was also considered by the Rajasthan High Court in Gopal Lal v. Babu Lal and others. 1997 (1) CCC 8 (Raj), and it was held that the decision in that case cannot be held to be correct view in the light of the decision of the Hon'ble Supreme Court in the case of Banwari Lal (supra).
10. For the reasons stated above, I am of the view that there is no error of law in the judgment and decree passed by the lower appellate court. No substantial question of law is involved in this appeal and the appeal merits dismissal.
11. Appeal is hereby dismissed at the admission stage.