SURYA PRAKASH KESARWANI, J. - (1.) Heard Sri Vinay Khare, learned counsel for the appellant and Sri Anurag Pathak, learned counsel for the respondents. On 21.07.2016, this appeal was heard and judgment was reserved noting the submissions of learned counsel for the parties as under: "Heard Sri Vinay Khare, learned counsel for the appellant and Sri Anurag Pathak, learned counsel for the respondents. This first appeal has been filed challenging order dated 13.09.2013 in Execution Case No.1 of 2012 passed by the court of Additional District Judge, Court No.5, Jalaun at Orai, whereby the application/ objection 21C filed by the appellant, was rejected. Learned counsel for the appellant submits that the appellant is wife of one Sri Amit Kumar and is living separately and as such, the decree dated 13.08.2003 on the basis of compromise dated 11.08.2003 cannot be executed against her in respect of disputed properties under Order XXI Rule 97, C.P.C. In support of his submissions, he relies upon judgments in the case of Meghraj Sah Vs. Rajansi Lal and others, AIR 1958 Patna 546 (paras3 and 4), Babulal Vs. Raj Kumar and others, AIR 1996 SC 2050 (paras 4 and 5), Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal, AIR 1997 SC 856 (para5) and State of U.P. Vs. Mangilal Sharma, AIR 1998 SC 743 (paras7 and 10). He also submits that the decree was not executable against the appellant even otherwise under Order XXI Rule 35, C.P.C. He further submits that the appellant cannot be evicted by way of execution of the decree in question. Sri Anurag Pathak, learned counsel for the respondent submits that the appellant is an imposter and the objection being paper 21C was filed by her in connivance with her husband who lost several round of litigation upto this court and thereafter, he had set up his wife, namely, the present appellant. He submits that the application/ objection 21C was an abuse of process of court and, therefore, it was rightly rejected by the impugned order. He further submits that the impugned order has been passed by the court below in accordance with law and it does not suffer from any infirmity. He refers to several paragraphs of the counter affidavit and orders of this court passed in two writ petitions filed by the husband of the appellant. He relies upon a judgment of Karnatka High Court in the case of Gajanan Vs. Jayamma, , 2008 AIR (Karnatka) 11 (para16) and the judgment of Bombay High Court in the case of Jagdish Motilal Joshi Vs. Chandrapal Tulsiram Bhola, 2007 (1) ALLMR 764 (para17). Judgment reserved."
(2.) I have carefully considered the submissions of learned counsel for the parties.
(3.) Briefly stated, facts of the present case are that the respondents No.2 & 3 are the mother and father of the respondents No.1, 4 & 5. Appellant is the wife of respondent No.4 and thus, daughter-in-law of respondents No.2 & 3. Fifth respondent Sri Anil Kumar Singh filed O.S. No.136 of 2000 to restrain the respondents No.1, 2, 3 and 4 from evicting him from the house property in question. The suit was contested by the parties but ultimately they entered into a compromise on 11.08.2003 and a decree in terms of compromise was passed on 13.08.2003 by the court of Additional District Judge, Fast Track Court- 11, Jalaun at Orai in respect of the house property in question at Rajendra Nagar, Orai. According to the contesting respondents No.1, 2 & 3, all the respondents were put in possession in the respective portions but on legal advice an Execution Case No.61 of 2008 was filed by the respondents No.2 and 3 against the respondent No.4. The respondent No.4 filed an application under Section 151 C.P.C. in the aforesaid Execution Case for recall of the compromise decree. The application of the respondent No.4 (husband of the appellant) was rejected by the Additional District Judge vide order dated 27.08.2012. He challenged this order in Writ-C No.48402 of 2012 which was dismissed by order dated 25.09.2012 as under: "Heard Sri Sushil Kumar Dubey, learned counsel for the petitioner. Sri Anurag Pathak has appeared for for respondents no. 2 to 5. Respondent no. 1 is represented by learned Standing counsel. Respondent no. 2 Anil Kumar instituted a suit claiming share in the property of Shobha Singh being one of his sons. In the said suit a compromise was arrived at between the sons of Shobha Singh and the suit was decreed in terms of the compromise. Subsequently, petitioner applied vide application under Section 151 CPC for recall of the compromise decree on the ground that at the time of compromise he was not aware that respondent no. 2 was adopted by one Ranvir Singh and as such he has lost his right in the property of his natural father Shobha singh. The said application has been rejected by the impugned order dated 27.8.2012 passed by the Additional District Judge. Challenging the said order only submission advanced is that at the time of passing of the compromise decree petitioner had no knowledge that respondent no. 2 was given in adoption. The compromise is not disputed. It has been signed by the petitioner. A decree on the basis of the compromise has been passed in his presence and upon hearing the petitioner. Therefore, the said order decreeing the suit no. 136 of 2000 on the basis of compromise can not be recalled. In view of the above, the court below has not committed any mistake in rejecting the application. The remedy, if any, of the petitioner lies elsewhere and not by asking for recall of the decree. Petition dismissed." ;