- (1.) RAM Janam Singh, J. Chandrabhan and others have filed this second appeal against the judgment and decree dated 31-1- 1995 passed by learned Additional Commissioner, Meerut.
(2.) FACTS of the case are that Fateh Singh and others, the fathers of the appel lants, filed a suit under Section 176 of the UPZA and LR Act before the learned trial Court against defendants Charan Singh, Sheeraj Singh and Shoran Sing claiming 1/4th share each for the plaintiff as well as remaining three defendants. The defen dants did not oppose the partition suit. The learned trial Court after perusal of the oral and documentary evidence and also a compromise between the parties decreed the suit accordingly on 21-9-77. After a lapse of even years on 10-10-1984 Fateh Singh moved an application for prepara tion of final decree. Defendants respon dents opposed that the final decree should not be prepared on the basis of the prelimi nary decree passed on 21-9-1977. The learned trial Court on the basis of this application moved by Fateh Singh and the objection raised by the defendants respon dents set aside the decree dated 21-9-1977 and fixed the case for further necessary action. The plaintiff- appellants filed a first appeal before the Commissioner Meerut and the Commissioner also rejected the appeal vide its order dated 31-1-1995. Hence, this second appeal. " I have heard the learned Counsel for the parties and gone through the records carefully. (sic) had been obtained fraudulently and not on the basis of the compromise then it was the duty of defen dant-respondents to have moved a separate application for setting aside the decree dated 21 -9- 77 which was passed on the basis of a compromise which did not bear the signatures of the defendants but after seven years that too on ;he applica tion of the plaintiff-appellant for prepara tion of final decree, setting aside of the preliminary decree passed on 21-9-77 can not be considered to be legally a correct version. There is a prescribed procedure for setting aside the ex-pane decree or order which was not in the knowledge of the aggrieved person or before passing application moved by the plaintiff- ellants for preparation of final that order no intimation was given to the aggrieved person. In the instant case the learned trial Court as well as the learned Additional Commissioner both have given the same finding that setting aside the order dated 21-9-77 on the basis of the a appel decree is correct. I think the opinion of both the Courts below is erroneous, against the facts and provisions of law. If the defendant-respondents were ag grieved they should have filed a separate application for setting aside that decree. Whether that decree was obtained on the basis of the compromise between the parties or not, this conclusion cannot be drawn merely on an application. Hence, the conclusio'n of both the Courts needs interference at this stage.
(3.) ON the basis of the discussions made above, the second appeal is allowed ; judgments and decree passed by both the Courts below are set aside. Appeal allowed .;