- (1.) ORDER ON I A. Nos. III & IV A few facts which are necessary to dispose of these I.As. are detailed as under: Regular First Appeal No. 18 of 1983 had arisen out of the judgment and decree passed by the XIV Additional City Civil Court, Bangalore, in 3065 of 1980, dated 27-7-1982. Sri Gurappa Reddy was the plaintiff in the said suit and he filed a suit against one Sri Kalappa Reddy for declaration and possession of the suit property. The said suit was instituted on 23-3-1974. After contesting the said suit for declaration and possession a judgment and decree was passed on 27-7-1982. Hence, on 2-11-1982 Regular First Appeal No. 18 of 1983 was filed in this Court by Sri Gurappa against Sri Kalappa Reddy.
(2.) Sri Kalappa Reddy died on 17-10-1982 that was during the pendency of the said appeal. On 17-11-1983 Gurappa Reddy filed an application to bring on record the widow of Kalappa Reddy and his sons as L.Rs stating that except these three there are no other L.Rs. On 31-5-1984 the said application was allowed. Accordingly, the wife and two sons of late Kalappa Reddy were brought on record as his L.Rs. On 22-11-1990 L.Rs. of appellant Gurappa and Kajappa Reddy filed a compromise petition under Order 23, Rule 3 of C.P.C. whereby item No. 6 of 'B' Schedule property was agreed to be given to the plaintiff-appellant Gurappa Reddy. The particulars of the said property as noted in the decree as item No. 6 of 'B' Schedule property is extracted here under: 'B' Schedule "(Item No. 6) site shown as site No. 2 in sketch enclosed situated at Appareddy Palya, Old Corporation No. 15 vacant space (Sy. No. 8 of Dookanahalli) measuring 35' East to West and 74'+71' 6" 2 North to South and bounded as follows: East by: Land belonging to joint family and encroached by Gurappa Reddy shown as ABC in the annexure sketch followed by Corporation No. 1 Gurappa's House West by: BDA 60'Road North by: Proposed 10' road belonging to joint family South by: Site No. 3-A.K. Chandrashekar Roddy's vacant land. On the basis of the said compromise petition the suit was disposed of on the same day and subsequently decree was drawn as per the terms of the compromise.
(3.) Subsequent to drawing the decree in O.S. No. 3065 of 1980 pursuant to order dated 22-11-1990 two IAs. were filed, by one Smt. Savithramma one under Order 1, Rule 10 and another under Section 151, C.P.C. requesting that compromise decree made on 22-11-1990 be recalled for the reason being that the parties in Regular First Appeal No. 18 of 1983 by playing fraud on the Court obtained a decree, viz., in getting item No. 6 of 'B' Schedule property allotted to appellant Gurappa Reddy. Even though the parties to the said appeals were quite aware that the said property become the property of Smt. Savithramma. It was also mentioned that L.R. application that was filed in Regular First Appeal No. 18 of 1983 to bring only the wife and 2 sons of late Kalappa Reddy was again with an intention to play fraud on this applicant in order to deprive her right on the property in question, viz., as on the date of filing the application, the appellant and as well as so-called three L.Rs. were quite aware that Kalappa Reddy died on 17-10-1983 leaving behind him not only wife and two sons but also four daughters namely, Savithramma and Bhagyamma and two other daughters. Her further case in both LAs. is that Smt. Bhagyamma one of the daughters of late Kalappa Reddy filed a suit on 16-12-1983 in O.S. No. 3939 of 1983 on the file of the City Civil Judge, Bangalore City (C.C.H. No. 10) for partition and possession of some of the properties including the property under dispute. Smt. Bhagyamma made her mother, viz., wife of Kalappa Reddy and her two brothers Chandrashckara Reddy and Purushothamma Reddy and other three sisters including the brother and applicant Savithramma, as parties. The suit was contested and the same was decreed on 29-3-1984 whereby disposed site was assigned to the share of Savithramma which Includes Item No. 6 in-'B' Schedule property of O.S. No. 3065 of 1980. Sri T.S. Ramachandra, learned counsel for the applicant submitted that as on the date of entering into compromise the plaintiff-appellant and as well as so-called wife and two other sons of late Kalappa Reddy were quite aware that this Savithramma the applicant and other three daughters also L.Rs. and as far as Savithramma the applicant is concerned had acquired right and interest in the property described above. Though aware of the said position with a view to deprive her of right on the property a portion of the same came to be given to the plaintiff. The property which was not available to allot to any one or to transfer somebody's rights on the property to others with their consent was nothing but a clear case of fraud. Though decree has been made on compromise petition, the same deserves to be recalled and she be permitted to contest the appeal so that she can demonstrate how she is entitled to the property now shown to have been given to the appellant-plaintiff.;