LexSNEH GUPTA versus DEVI SARUP & ORS.
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[2009] 2 S. C.R. 553 SNEH GUPTA A ~ ;, V. DEVI SARUP & ORS. Civil Appeal No.1085 of 2009 FEBRUARY 17, 2009 B ( S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ ) Code of Civil Procedure, 1908: 'W ..j Or. 23, rr. 1 and 3 - Suit for declaration and possession decreed - Withdrawal of suit in terms of compromise in c appeal - HELD: If suit is to be disposed of in terms of compromise, Or. 23, r. 1 may not have any application - If an ·~ heir has derived title to the property, he cannot be deprived thereof by reason of an agreement between plaintiff and contesting defendants. D .. Compromise in appeal - Hearing of appeal preponed / '( for the purpose - HELD: Notice should have been given to all parties - Practice and Procedure. Constitution of India, 1950: E Article 227 - Supervisory jurisdiction of High Court - HELD: Is limited so as not to enter into disputed question of ;.. fact. "' Limitation Act, 1963 : F s.3 - Schedule - Article 123 - Period of /imitation for setting aside compromise decree - HELD: A compromise decree is as good as contested decree attracting provisions of the Act- In absence of application for condonation of delay, •, court has no jurisdiction in terms of s. 3 to entertain application G ' for setting aside the decree. , ..... ,. One 'BM' was the owner of the suit properties. He had a daughter name~y 'MD'. One of the heir of 'MD' namely 553 H 554 SUPREME COURT REPORTS [2009] 2 S.C.R. A 'VN' filed two suits: Suit No 185of1989 was filed against transferees of 'RS' who was the third cousin of 'BM' stating that mutation was got sanctioned in 1954 by playing fraud and on misrepresentation that 'BM' was not alive nor did he had any heirs. In suit No. 303 of 1992 it was alleged B that 'RS' failed to carry out the intentions of the testator, and the terms of the trust were violated. Suit No. 185/1989 was decreed. During the pendency of appeals, the pla,intiff and respondents no. 1 to 3 and 'RS' entered into a compromise and the suit was withdrawn. Suit No. 303/ C 1989 was also withdrawn in terms of the compromise. However, the application of the appellant, another heir of 'MD', who was not a party to the suit, questioning the compromise on the ground that its notice was neither given to her nor to other heirs of MD, was allowed by the 0 appellate court; but the said order was set aside by the High Court. In the instant appeal it was contended for the appellant that the trial court having held that not only the plaintiff but the other heirs of 'MD' were also entitled to E· recovery of possession of the suit properties, the purported compromise entered into between the plaintiff and contesting defendants must be held to be illegal and without jurisdiction. F Dismissing the appeal, the Court HELD: 1.1 It is not a case where the original plaintiff applied for withdrawal of the suit similicitor. She did so relying on or on the basis of a compromise entered into by and between the parties. If a suit is to be decreed or G dismissed on the basis of a compromise, order XXlll Rule 1 of the Code of Civil Procedure, 1908 may not have "any application. Even in such a case, a permission to withdraw the suit could have been given onty with notice to the respondents who had become entitled to some interest H in the property by reason of a judgment and decree ( • ~ . 111111 - - - SNEH GUPTA V DEVI SARUP & ORS. 555' passed in the suit. The Court for the purpose of allowing A withdrawal of a suit after passing the decree, viz., at the appellate stage, is required to consider this aspect of the matter. 'VN', although was a plaintiff, did not claim any exclusive title in herself, but claimed title to the property as one of the daughters of 'MD'. Interest of the appellant 8 and her other sisters and brothers also stood on the same footing. They also, for all intent and purport, could have independently maintained a suit either in their individual capacities or jointly. [para 19] [569-E, F, G, H; 570-A, 8] 1.2 The claim put forth by 'RS' on the basis of an oral C 'hiba' purported to have been made by 'BM' before the Revenue authorities was found to be tainted with fraud. A finding of fact was arrived at that no such transaction had taken place as 'BM' was seriously ill and had been residing at some other place. The trial Judge also arrived at a 0 finding that before the Revenue authorities, a misrepresentation had been made sta
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