Siddalingeshwar and ors. Vs. Virupaxgouda and ors. - Court Judgment

Excerpt:
- karnataka stamp act, 1957.[k.a. no. 34/1957]. section 34: [cyriac joseph, c.j. & a.n.venugopala gowda, jj] imposing of penalty - trial court imposed ten times the amount of the deficient portion of the proper duty as penalty - held, the impugned order was passed by the trial court in exercise of the power under the proviso to section 34 of the karnataka stamp act, 1957. according to clause (a) of the said proviso, when the amount of the proper duty or deficient portion thereof exceeds five rupees, the penalty to be imposed is a sum equal to ten times such duty or portion. there is no discretion granted to the court to impose a lesser penalty. - on appeal, the supreme court restored the order of the trial court holding that an application to recall an order passed on compromise, can.....raveendran, j. 1. the appellants were the plaintiffs and respondents were defendants in o.s.no. 176/1999 on the file of the civil judge (sr. division), gadag. for convenience we will refer to the parties by their ranks in the suit or by their names.2. virupaxgouda and veerangouda (defendants 1 and 2 in this suit) are brothers and are the sons of late basangouda patil and his wife basawa. plaintiffs- 1 to 4 are the children, and plaintiff no. 5 is the wife of virupaxgouda, the first defendant. the third and fourth defendants are respectively the son and wife of veerangouda, the second defendant.3. basangouda, filed a suit against his two sons (virupaxgouda and veerangouda) and his wife (basawa) in o.s.no. 60/1994 on the file of the civil judge (sr.division) gadag for partition and separate.....

Judgment:

Raveendran, J.

1. The appellants were the plaintiffs and respondents were defendants in O.S.No. 176/1999 on the file of the Civil Judge (Sr. Division), Gadag. For convenience we will refer to the parties by their ranks in the suit or by their names.

2. Virupaxgouda and Veerangouda (Defendants 1 and 2 in this suit) are brothers and are the sons of late Basangouda Patil and his wife Basawa. Plaintiffs- 1 to 4 are the children, and plaintiff No. 5 is the wife of Virupaxgouda, the first defendant. The third and fourth Defendants are respectively the son and wife of Veerangouda, the second defendant.

3. Basangouda, filed a suit against his two sons (Virupaxgouda and Veerangouda) and his wife (Basawa) in O.S.No. 60/1994 on the file of the Civil Judge (Sr.Division) Gadag for partition and separate possession of his one-fourth share in the joint family properties. He alleged that there was no partition till then. During the pendency of the suit, Basangouda died. Basangouda's second son Veerangouda and Basangouda's widow - Basawa (defendants 2 and 3 in that suit) were transposed as plaintiffs 1A and 1B, and Virupaxgouda continued as the sole defendant. Subsequently, Basawa also died allegedly leaving a will bequeathing her properties to Somashekhargouda, son of Veerangonda, and accordingly Somashekhargouda was impleaded as plaintiff 1B(1) as the L.R. of the deceased Basawa in that suit. A compromise petition was filed on 28.5.1999 in the said suit (O.S.No. 60/1994) by the plaintiffs in the suit (Veerangouda and his Somashekhargouda) on the one hand and the defendant in the suit (Virupaxgouda) on the other, dividing the suit properties. The said compromise proceeded on the basis that there was no earlier partition. A consent Decree was passed in terms of the said compromise on 31.5.1999.

4. The Appellants herein filed O.S.No. 176/1999 on 13.12.1999 alleging that there was an oral partition in the year 1976 between Basangouda, Virupaxgouda and Veerangouda and in the said partition, the plaint 'A' schedule properties were allotted to Virupaxgouda, plaint 'B'schedule properties were allotted to Veerangouda and plaint 'C' schedule properties were allotted to the share of Basangouda; and that each of them was in possession and enjoyment of the respective properties allotted to them from 1976 onwards and they were also registered as the Khathedar of the respective properties allotted to them; in the Revenue records and Panchayat records. They contended that suppressing such partition, Basangouda had filed O.S.No. 60/1994 and the compromise entered therein between Veerangouda and Somashekhar Gouda on the one hand and Virupaxgouda on the other was unlawful and void as it was the result of coercion and undue influence. They therefore sought the following reliefs:-

a. For cancellation of the Compromise Decree passed in O.S. No. 60/1994 on the file of the Civil Judge (Sr.Dn.), Gadag.

b. For a Decree awarding 5/6th share in the plaint A and C schedule properties, to the plaintiffs and for partition and separate possession of their share in the said properties.

c. For a direction to send the decree to the revenue authorities for effecting a partition of the lands and for appointment of a Commissioner to divide the house properties.

5. The first defendant (Virupaxgouda) filed his written statement on 14.8.2000 supporting the plaintiffs and contended that he was forcibly made to enter into a compromise in O.S.No. 60/1994. Defendants-2 to 4 did not file any written statement but filed an application (I.A.2) dated 7.8.2000 under Order 7 Rule 11 read with Order 23 Rule 3A of CPC, for rejection of the plaint on three grounds : (i) that plaintiffs have no locus standi to file such a suit; (ii) that suit did not disclose any cause of action; and (iii) the suit was barred by Order 23 Rule 3A CPC.

6. The Trial Court has allowed the said application (IA-2) and rejecting the plaint by order dated 8.2.2001. The Trial Court has held that having regard to the provisions of Order 23 Rule 3A CPC, the suit (O.S.No. 176/1999) for cancellation/setting aside the compromise Decree in O.S.No. 60/1994 is barred and plaintiffs have no locus standi to file the suit. The Trial Court has held that once a Decree is made in terms of a compromise, it cannot be challenged except on the ground of fraud and coercion, and as fraud or coercion have not been alleged, the suit will also have to be dismissed as not disclosing a cause of action.

7. Feeling aggrieved, the plaintiffs have filed this appeal. The appellants have contended that (i) the provisions of Order 23 Rule 3 B CPC were not complied with, and no attempt was made by the Court which passed the consent decree in O.S.No. 60/1994 to ascertain whether the interests of the members of the family of Virupaxgouda, in particular the minor children were safeguarded and therefore Order 23 Rule 3A of CPC is not a bar to a subsequent suit; (ii) the Trial Court erred in rejecting the plaint under Order 7 Rule 11 CPC by holding that the plaint did not disclose any cause of action; and (iii) the Trial Court erred in holding that plaintiffs have no locus standi to file the suit. On the contentions urged, the following questions arise for consideration in this appeal;

(i) Whether the bar under Order 23 Rule 3A CPC will not apply, if Rule 3B is not complied with?

(ii) Whether Order 23 Rule 3B was applicable to the compromise entered in OS No. 60/1994? If so, what is the effect of non-compliance with the said Rule, while passing the consent decree?

(iii) Whether the Trial Court was justified in rejecting the plaint by holding that the suit did not disclose any cause of action and plaintiffs had no locus standi to file a suit challenging the consent decree in O.S.No. 60/1994?

Re: Question No. (i):

8. To find the answer to the first question, a reference to the relevant provisions of Order XXIII of CPC, dealing with the adjustment/compromise of a suit, is necessary. Order XXIII Rule 3 provides that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties, the Court shall order such agreement or compromise to be recorded, and shall pass a decree in accordance with therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise is the same as the subject matter of the suit. Therefore, where an agreement or compromise by which the suit is settled/ adjusted is placed before the Court, there are two obligations on the part of the Court. The first is that Court should satisfy itself that the agreement or compromise is lawful, before ordering that such agreement or compromise to be recorded. The second is that whether or not the subject matter of the agreement or compromise is the same as the subject matter of the suit, the Court on recording such compromise or agreement, shall pass a decree in accordance with the compromise, so far as it relates to only the parties to the suit.

9. Earlier there were divergent views as to the effect of a decree based on a compromise which was opposed to public policy. One view (expressed by this Court in BHIMA RAMA JADHAV v. ABDUL RASHID AIR 1968 Mysore 184 ) was that a consent decree is not a nullity merely because the terms of compromise on the basis of which such decree is passed, contained a term opposed to law or public policy. This is on the reasoning that when a Court puts its seal of approval to a compromise between the parties, it ceases to be a contract simplicitor and becomes binding on the parties, unless it is set aside in appropriate proceedings, that a consent decree may be got set aside within the period of limitation prescribed, on grounds which may be sufficient to invalidate a contract, and that where a compromise decree passed by a Court of competent jurisdiction contains any term which is opposed to law or public policy, and if that decree has not been set aside in proper proceedings, it operates as estoppel and res judicata in a subsequent proceedings between the same parties. The contrary view was expressed by the Madras High Court (in LAKSHMANASWAMY NAIDU v. RANGAMMA, , (1903) 1LR 26 Mad 31 and Patna High Court in BALDEO JHA v. GANGAPRASAD : AIR1959Pat17 that a consent decree passed in terms of a compromise/agreement which is unlawful, is itself unlawful and thus void; and therefore such compromise decree is inoperative and an executing Court can entertain objections as to the validity of a compromise decree.

10. To resolve the conflict, certain amendments were made to CPC by Act 104 of 1976. Rule (3-A)was introduced with consequential amendments by adding an explanation to Rule 3 and by inserting Rule 3B. Order 43 was simultaneously amended by deleting Clause (m) of Rule 1 and by adding Rule 1A. We may refer to them briefly.

10.1) Rule 3A provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

10.2) The Explanation to Rule 3 classifies that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of Rule 3.

10.3) Rule 3-B of Order 23 providing that no agreement or compromise is to be entered in a representative suit without leave of Court is extracted below.

'(1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

Explanation : In this rule, 'representative suit' means -

(a) a suit under Section 91 or Section 92.

(b) a suit under Rule 8 of Order 1

(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family.

(d) any other suit in which the decree passed may, be virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.'

10.4) Rule 1(m) of Order 43, which provided for an appeal against an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction, was deleted. Rule 1A was inserted to the following effect.

(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.

Section 96(3) of CPC which states that 'no appeal shall lie from a decree passed by the Court with the consent of parties' was left undisturbed.

11. The effect of Rule 3A of Order 23 and Rule 1A of Order 43 was considered by the Supreme Court in BANWARI LAL v. CHANDO DEVI : AIR1993SC1139 . The appellant before the Supreme Court was the plaintiff in a suit wherein a consent decree was passed. He filed an application for recalling the order recording the compromise alleging that his counsel, in collusion with the defendant, had played fraud on him by filing a fabricated compromise. The Trial Court allowed the application and recalled the order disposing of the suit in terms of the compromise. The High Court however had set aside that order in a revision. On appeal, the Supreme Court restored the order of the Trial Court holding that an application to recall an order passed on compromise, can be entertained in the same suit and if the Court was satisfied on the material produced that the compromise was not lawful, it can recall the order. The following observations of the Supreme Court are relevant:

'By adding the proviso along with an explanation (to Rule 3) the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a 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. Having introduced the proviso along with the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3A in respect of institution of a separate suit for setting aside a decree on basis of a compromise.........

xxxxSection 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties. Rule 1A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order 43, Rule 1(m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be filed for setting aside such decree on the 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 the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such a right has been given under Rule 1A(2) of Order 43 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. '

12. Normally, the need to challenge the compromise decree, on the ground that a term of the compromise was not lawful would arise only at the instance of any of the parties to such compromise. This is because no third party would be bound or affected by it. But where a party to a suit sues or is sued in a representative capacity, for and on behalf of others who are not parties, then such persons who were not parties will also be bound by a consent decree passed in such a suit. Consequently in such representative suits, persons who were not parties to the compromise decree may also be aggrieved by it if any term of the compromise is not lawful. To ensure that the interests of persons who are not parties, but who are nevertheless bound by the consent decree are not affected, a safety mechanism has been provided by inserting Rule 3B in Order 23.

13. But what happens if such safety mechanism is ignored or not complied with? Let us consider, by way of illustration, a case under Order 1 Rule 8 CPC which enables a person to sue or defend on behalf of others having the same interest in the suit and provides that a decree passed in a suit under the said Rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. The said Rule requires that in every case where permission to sue or be sued is granted under that Rule, the Court shall give notice of the institution of the suit to all persons interested. If such notice is not given to the persons interested, then the decree passed in such a suit, will not bind the persons on whose behalf, or for whose benefit, the suit is instituted, or defended. The PRIVY COUNCIL in KUMARAVELU CHETTIAR v. T.P. RAMASWAMY AYYAR considered the question as to whether the previous suit in regard to a public right without complying with the provisions of Order 1 Rule 8 CPC will operate as res judicata in a subsequent suit. The Privy Council answered the question in the negative, holding thus:

'Explanation 6 to Section 11 of CPC is controlled by Order 1 Rule 8 and if a Court allows a suit to which the rule applies to proceed in a representative capacity for the benefit of numerous parties, all these parties will not be bound by the decree, even if the contest leading to it were bonafide, but the procedure prescribed by the rule is in no respect followed ... Bonafide litigation will not exclude the neglect of statutory conditions.'

In EFFUAH AMISSAH v. EFFUAH KARABAH, AIR 1936 PC 146 the Privy Council reiterated the position thus:

'Their lordships do not doubt that an action by or on behalf of a family may result in a res judicata ... but such an action, if it is to bind absent or future members of the family, must be so constituted according to the local rules of procedure, by a representation order or in some other way that all such members can be regarded as represented before the Court.'

Another example of representation action is claim petitions for compensation under the Motor Vehicles Act. The said Act provides that an application for compensation should be made by all the legal representatives of the deceased. It also provides that where all the legal representatives of the deceased have not joined in such application, the application can be made by any of the legal representatives on behalf of or for the benefit of all the L.Rs of the deceased, provided the L.Rs. who have not so joined shall have to be impleaded as respondents in the application. Where a claim application was filed by only some of the L.Rs. without impleading other L.Rs., a question arose as to whether a subsequent claim application by one of the other L.Rs. who was not impleading in the first claim petition, was barred by principles of res judicata. A Full Bench of this Court in UNITED INDIA INSURANCE COMPANY LIMITED v. SHARADA ADYANTHAYA : AIR1998Kant141 held thus:

' Under the Motor Vehicles Act, there is a specific provision contained in the proviso to Section 110A(1) to the effect that, persons who have not joined the application in a claim for compensation, shall be impleaded as respondents. If such persons are not impleaded, the judgment in the previous case, cannot operate as resjudicata as against them as the procedure prescribed has not been complied with..........'

The principle therefore is that a decision in a representative suit will act as a bar to a subsequent suit for the same relief, only if the first suit had been constituted or brought in accordance with the rules of procedure governing such suits.

14. The said principle will equally apply to Order 23 Rules 3, 3A and 3B CPC, in so far as consent decrees are concerned. A consent decree in a representative suit will bar a subsequent suit challenging the compromise on which such consent decree was passed only if the compromise had been entered and consent decree is passed in accordance with the relevant Rules. A bar is imposed to challenge the compromise in a separate suit because a party to a compromise is entitled to challenge the compromise as not lawful, either by filing an application in the same suit or by filing an appeal under Order 43 Rule 1A. But such remedies are available only to the parties to the suit. A person who is not a party to the suit, cannot obviously file an application in the suit, or an appeal, to challenge a compromise as being not lawful. But in a representative suit, if the Court issues notices to persons interested in the suit ( who are not parties to the suit) and hears them before deciding whether leave should be granted to the parties to the suit to enter into a compromise/ agreement, then they would also in effect become parties to the suit and will be entitled to avail the remedies that are available to a party to the suit against a compromise or the consent decree, which is not lawful. In no notice is issued to the persons interested in a representative suit and as a consequence the consent decree is void under Rule 3B, then such persons ( who are not parties) will not be entitled to file an application in the suit or file an appeal under Order 43 Rule 1A. Therefore their right to bring a separate suit seeking appropriate remedy, remains unaffected. We therefore hold that if Rule 3B is not complied with, while passing a decree on a compromise in a representative suit, any person who is affected by such compromise decree, but not a party to it may file a separate suit seeking appropriate relief in regard to such compromise decree, by way of declaration or otherwise. He may also file a suit for appropriate relief ignoring the compromise decree and such a suit will not be barred either by the principle of res judicata or estoppel.

15. The effect of the amendments to provisions of Orders 23 and 41 of CPC, effected by Act No. 104/1976, can conveniently be summarised thus:

(i) If a party to a suit who enters into a compromise in terms of which a consent decree is made wants to challenge it, on the ground that it is not lawful, he need not be driven to file a separate suit to set aside such decree. In fact such a suit is barred by Rule 3A of Order 23. His remedy is to file an appeal under Order 43 Rule 1A of CPC contending that the compromise not being lawful, it should not have been recorded. Alternatively, he can file an application in the very suit in which the compromise is recorded to recall the consent decree on the ground that compromise is not lawful or is vitiated by fraud.

(ii) If a suit is a representative suit ( as enumerated in the explanation to Rule 3 B), no compromise or agreement can be entered without the leave of the Court, expressly recorded in the proceedings, after issue of notice to the persons interested, as provided in the said Rule. Any party to a representative suit, either suing or being sued in a representative character, should therefore seek leave of the Court to enter into such compromise/Agreement. The Court should give notice of such compromise/agreement to such persons as may appear to it to be interested in the suit before granting such leave. After such notice, and after satisfying itself that the proposed compromise/Settlement is not disadvantageous to the persons interested, the Court may grant leave, by expressly recording it. Failure to comply with the mandatory provisions of Rule 3B will render the agreement or compromise void.

(iii) The object of the amendments to Order 23 and Order 43 is to have finality to proceedings and at the same time enable to party to a compromise, to challenge the decree passed in terms of such compromise, either by way of an appeal under Order 43 Rule 1A or by way of an application in the very suit, without resorting to a separate suit, if the compromise is not lawful. The said amendments are not intended to bar persons who were not parties to the suit ( but nevertheless bound by the decree by virtue of the fact that the suit is a representative suit) from challenging such consent decree even where such decree was passed without following the mandatory procedure prescribed under Rule 3B. A decree in a representative suit can bind non-parties, only if the procedural safeguards prescribed for representative suits are complied with. Similarly a consent decree in a Representative Suit will attract the bar under Order 23 Rule 3A only if the procedural safeguards prescribed under Order 3B are complied with and not otherwise.

16. Before parting with this aspect, we find it necessary to deprecate the mechanical manner in which decrees are passed on compromises. More often than not, Courts overlook the fact that representatives suits are different from normal suits, as any decision in a representative suit binds not only the parties to the suit, but others who are not parties. When a compromise or agreement is filed under Order 23 Rule 3, the Court therefore has to first examine whether the suit is a 'representative suit' as defined in Order 23 Rule 3B and if so, then proceed with the matter as provided in that Rule. Secondly the Court should satisfy itself that the agreement or compromise is lawful and is signed by the parties. Thirdly, the Court should ensure that the decree is passed in terms of the compromise or agreement, only in so far as it relates to the parties to the suit. We find that Trial Courts in my cases, merely record the filing of the compromise or agreement and order that a decree be passed in terms of it, without applying the judicial mind to the relevant aspects. The Supreme Court has referred to this aspect in the case of BANWARILAL (supra) thus, while pointing out that once a compromise is accepted, it acquires the sanctity of a judicial order.

'It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise..... The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties.'

Re: Question No. (ii)

17. It is well settled that every person who is entitled to a share on partition is a necessary party to a suit for partition. But, where a family consists of several branches, it is sufficient if the heads of the branches are made parties, as the head of a branch represents the members of the branch. In R. SUBBA RAO v. SUBBA RAO AIR 1936 MAD 689 it was held:

' There can be no doubt that a father is entitled to and competent to represent his sons in a partition with his brother's and a partition affected by him will be binding on the sons, unless

it is shown that it was fraudulent or unfair or prejudicial to their interest.'

In BHIKULAL v. KISANLAL : AIR1959Bom260 the Bombay High Court held:

'Where partition is claimed as between branches of the family, the heads of the branches alone need be made parties ... But when the other members of the branch have joined in the institution of suit and have been made co nominee parties to the suit, the Court cannot remove them from the suit on the ground that they need not have been joined in the suit. They may not be necessary parties, but are indeed proper parties to the suit.'

In a suit for partition, where the heads of branches alone are made parties, any decision rendered would bind not only the heads of the branches, but also the members of the branches represented by the respective heads ( who have been made parties). Therefore, a partition suit where only the heads of branches are made parties, without impleading the other members who are entitled to shares, will be a representative suit for the purpose of Order XXIII Rule 3-B of CPC, having regard o the explanation (d) to the said Rule. In such a representative suit, no agreement or compromise can be entered into without the leave of the Court, expressly recorded in the proceedings after issuing notice to all parties interested in the suit.

18. The plaintiffs, who are the son, three daughters and wife of Virupaxgouda were not parties to O.S.No. 60/1994. The said suit was filed Basangouda for partition and separate possession of his 1/4th share in the suit schedule properties, against his two sons (Virupaxgouda and Veerangouda) and his wife. Neither the children of Virupaxgouda nor the son of Veerangouda, were made parties to the suit. Basangouda having died during the pendency of the suit, leaving the three defendants in that suit as his only legal heirs, in the usual course the suit ought to have been dismissed on the ground that the cause of action did not survive as the defendants were his only LRs. But, instead of the suit being dismissed, two of the defendants (widow and one son of Basangouda) choose to transpose themselves as plaintiffs and continue the suit against the other defendant (other son of Basangouda) and thereafter entered into a compromise. As the decree passed in O.S.No. 60 of 1994 against Virupaxgouda would, under the principles of Hindu Law, bind his children (appellants 1 to 4 herein) who were not parties to the suit, the suit in O.S.No. 60/1994 would be a 'representative suit' for the purposes of Order 23 Rule 3B CPC. If O.S.No. 60/1994 was a representative suit, then the mandatory provisions of sub-rules (1) and (2) of Rule 3B had to be complied. The order sheet in O.S.No. 60/1994 shows that when the parties to the said suit entered into a compromise, leave of the Court was neither sought nor given. The Court did not expressly record the grant of leave to the parties to enter into the compromise as contemplated under Sub-rule(1) Rule 3B. Further the Court did not give notice to persons interested in the suit, as required under Sub-Rule (2) of Rule 3B. As a consequence, the compromise was void and the consent decree in O.S.No. 60/1994 based on such compromise will not bind the Appellants and Rule 3A of Order 23 will not be a bar to a subsequent suit challenging the compromise decree. The Trial Court committed an error in holding that Order 23 Rule 3A barred the suit by the appellants in OS No. 176/1999.

19. Respondents 2 and 4 strongly relied on the decision of a Division Bench of this Court in BAHU BALI RAMAPPA PADNAD v. BABU @ B.R.S.PADNAD : AIR2000Kant21 wherein it was held that sons of a party to a suit for partition which ended in a compromise can neither file suit to set aside the compromise decree, having regard to the bar contained in Order 23 Rule 3A, nor file a petition in the suit itself to set aside the consent decree, as they were not parties and therefore not having any locus standi. The said decision considered only Order 23 Rule 3A, but did not take note of Rule 3B of Order 23. A decision is not binding as a precedent, if it is rendered, either in ignorance of or by failing to take note of a relevant statutory provision. Therefore, the said decision, rendered per incurium, is not a binding precedent.

Re.Question (iii):

20. The children of Virupaxgouda, as the members of joint family are entitled to a share in the joint family properties. Therefore, they are entitled to bring a suit for partition. On the other hand if there is already a partition, where certain properties are allotted to the branch of Appellants and if subsequently a suit for partition is filed by another member by ignoring the partition and a consent decree is passed therein, the Appellants will certainly be entitled to challenge such decree as per law. If the consent decree in O.S.No. 60/1994 violates Order 23 Rule 3B and consequently if Order 23 Rule 3A is not attracted, there can be no doubt that the plaintiffs in the suit will have a cause of action and locus standi to file suit challenging the consent decree. The third question is answered accordingly.

Conclusion:

21. This Appeal is therefore allowed and the order dated 8.2.2001 passed by the Civil Judge (Sr.Division), Gadag on I.A. No. II in O.S. No. 176/1999 dismissing the suit under Order 23 Rule 3A, and Order 7 Rule 11 is set aside. The matter is remanded to the Court below for fresh disposal on merits, after framing issues in accordance with law. Parties to bear their respective costs.