- (1.) D. K. Seth, J. The plaintiff-opposite party had filed a suit for partition in the Court of learned II Additional Civil Judge (Senior Division) Varanasi being Original Suit No. 551 of 1995. The defendant-ap plicant had filed suit for declaration being Original Suit No. 752 of 1994 denying the title and interest of the plaintiff-opposite party in respect of the property sought to be partitioned in Original Suit No. 551 of 1995. The plaintiff opposite party filed Original Suit No. 613 of 1994 against one Sri Pradip. Kumar Yadav for injunction. The said Pradip Kumar Yadav filed Original Suit No. 750 of 1994 against the plaintiff-opposite-party for injunction. On 17th November 1995 a petition of compromise between the plaintiff and the defendant were filed in Original Suit No. 551 of 1995. In the said compromise filed in Original Suit No. 551 of 1995 other three suits mentioned above were also sought to be decided in terms of the compromise between the parties. By an order dated 18th November 1995 in the presence of learned Counsel for both the parties, both the parties had verified the compromise. Accordingly the learned Civil Judge had passed a Compromise decree on 19th November, 1995. Subsequently the Plaintiff-opposite party filed Execution case No. 5 of 1996 before the learned Civil Judge. In the said Execution case the ap plicant had filed an application inscribing the same to be one under Order IX Rule 13 read with Section 151 and Order XXIIi Rule 3-Aof the Code of Civil Procedure and prayed for setting aside the compromise decree sought to be executed which was registered as Misc. Case No. 10 of 1996, arising out of Execution Case No. 5 of 1996. By an order dated 16-9-1996 the defendant-applicant's application was rejected. Against the said order dated 16-9-1996 the present Revision petition has been filed.
(2.) SRI M. D. Singh, learned Counsel for the Plaintiff-opposite party assails the said Civil Revision as not maintainable and had prayed for vacating the interim order granted on 1st October 1996 in the present revision. SRI Sankatha Rai, learned Counsel for the defendant-applicant on the other hand opposes the contention of SRI M. D. Singh. In support of their rival contentions both the learned Counsel for the parties had addressed the court extensively on the merit of the case itself. Both the learned Counsel for the parties had agreed that in stead of hearing the matter for vacating stay order since the parties are represented, the matter may be heard on merits and may be decide finally. By consent of the parties the revision application is heard on merits ac cordingly. Sri Singh raises three points, firstly, that the application is not maintainable in view of Order XLIII Rule 1-A, sub-rule (2) of the Code of Civil Procedure. Providing appeal against recording of compromise. Inasmuch as in view of specific provisions Section 151 of the Code can not be applied. Similarly Order IX Rule 13 of the Code of Civil Procedure can not be attracted since the order was not an ex-pane order. His second contention was that even on merits there is nothing to enable the court to allow the said application. The third contention of Mr. Singh is that the revision itself is not maintainable because the learned Civil Judge had rightly decided the case and there is no question of illegal exercise of jurisdic tion or failure to exercise jurisdiction caus ing irreparable injury on the defendant-ap plicant since the remedy of the petitioner was open under Order XLIII Rule 1-A (2) of the Code. S. Rai on the other hand contends that even despite existence of Order XLIII Rule 1-A (2) of the Code Section 151 is very much applicable in view of the facts and circumstances of the case. His second con tention is that on merit there are sufficient grounds to interfere with the order record ing compromise. His third contention was that the revision is very much maintainable since the learned Civil Judge decided the matter without allowing the defendant-ap plicant to examine witnesses though prayed for and had held that the application is not maintainable and thereby had failed to exer cise his jurisdiction or had exercised his jurisdiction illegally.
(3.) AFTER having heard the learned Counsel for the parties it appears that the facts and the dates are more or less ad mitted. Admittedly, the defendant-ap plicant was present in the court when com promise was recorded. It is not contended by the defendant-applicant that the order was passed ex-pane. No such case was made out in the application for setting aside the com' promise decree. Order IX Rule 13 of the Code of Civil Procedure is the procedure laid down for setting aside ofex-parte decree on the conditions mentioned therein. It is not the case that no notice was served on the defendant- applicant or that she had no notice of the suit which was compromised. It was neither the case that the decree was passed ex-parte. The case that was made out in the application was that the order of com promise was obtained by undue influence and coersion etc. Therefore, Order IX Rule 13 of the Code of Civil Procedure can not have any manner of application. According ly, it was rightly held by the learned Civil Judge that the defendant-applicant can not ask for setting aside the compromise decree under Order IX Rule 13. A decree on com promise is passed in between the two per sons who are present before the Court. Therefore, it can be no stretch of imagina tion be an ex. pane one as between the par ties seeking compromise. The Procedure for compromise is provided in Order XXIII. Order IX deals with completely different situation. By no stretch of imagination a situation falling within the ambit of Order XXIII can be brought within the purview of Order IX. Order IX deals with dismissal of suit for default and passing of decree ex- pane and the procedure for obtaining orders setting aside such orders. Only cases falling with the purview of Order IX can be dealt with under the said provisions. The situation envisaged in the fact and circumstances of this case does not come under Order IX. Admittedly, a compromise decree was passed. If the same is sought to be set aside then the provisions as contemplated in Order XXIII are to be resorted to. Therefore Order IX Rule 13 can not be invoked, as rightly held by the learned Executing Court, in the facts of the present case.;