- (1.)Petitioner is seeking for quashing of the judgment and decree passed by the II Addl. Civil Judge and JMFC, Belgaum, in O.S. No. 449/2012 dated 27.03.2012 whereunder compromise petition filed by the parties to the lis under Order XXIII, Rule 3 read with Section 151 of CPC came to be accepted and decree has been drawn as per Annexure-C. The contention of the learned Counsel for the petitioner Sri. Santosh B. Rawoot, is petitioner has not executed any agreement of sale and by fabricating the signature of the petitioner on the alleged agreement of sale, compromise petition came to be filed and defendant is an aged person and he never attended the Court and he has never executed a power of attorney in favour of anybody and plaintiff colluding with each other and to grab the joint family property, compromise petition has been set up and no opportunity was given to the petitioner at the time of passing compromise decree and hence same is liable to be set aside.
(2.)By virtue of introduction of Rule 3A to Order XXIII, a bar has been created to file the suit challenging the recording of the compromise as not lawful. Under Order XLIII, Rule 1(m) prior to the amendment, aggrieved party had a right of challenging the same by way of appeal and same had been omitted by Amendment Act 104/1976. However, simultaneously Rule 1A came to be inserted to Order, XLIII by Act 104/ 1976 with effect from 01.02.1977 which provides for challenging non-appealable orders in appeal against such decrees. Said provision 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.

(3.)In view of there being a clear bar under Rule 3 of Order XXIII to file a suit and there being no bar to challenge the said decree in an appeal, the present writ petition would not be maintainable. This view taken by me is fortified by judgment of the Apex Court in the case of Banwari Lal Vs. Smt. Chando Devi (through LR) and Another, 1993 AIR(SC) 1139 whereunder it has been held as under:
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 Vs. V.S. Krishnaswamy Rao, 1985 AIR(Kar) 270 S.G. Thimmappa Vs. T. Anantha, 1986 AIR(Kar) 1, Bindeshwari Pd. Chaudhary Vs. Debendra Pd. Singh, 1958 AIR(Pat) 618; Mangal Mahton Vs. Behari Mahton, 1964 AIR(Pat) 483 and Sri Iswar Gopal Jew Vs. Bhagwandas Shaw, 1982 AIR(Cal) 12, where it has been held that application under S. 151 of the 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. 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 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.

In the above judgment of the Apex Court it has been held that a party challenging a compromise recorded can file a petition under proviso to Rule 3A of Order XXIII or an appeal under Section 96(1) in which the validity of the compromise can be challenged in view of Rule 1A of Order XLIII. In that view of the matter, present writ petition is not maintainable. It is hereby dismissed.

Petitioner is at liberty to work out his remedy in accordance with law.