IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.2006-2007 OF 2009 (Arising out of S.L.P. (C) Nos.9620-9621 of 2002)

Devineni Tirupathirayudu and Ors.      ...Appellant(s)

Versus

Surapaneni Suramma (D) By Lrs. and Ors.    ...Respondent(s)

With Civil Appeal No.2041 of 2009 (Arising out of S.L.P. (C) No.13066 of 2002)

O  R  D  E  R

Leave granted.

Respondent No.1, Surapameni Suramma, who is now represented by legal

representatives, filed suit for partition and separate possession of half share in some

of the properties enumerated in Schedules A and B to the plaint.  Defendant no.4 –

Devineni  Rupanarayanarao got  himself  impleaded as  part  to  the suit  by  filing  an

application under Order 1 Rule 10 of the Code of Civil Procedure (CPC).  

During the pendency of  the suit,  some of the defendants died and their

legal representatives were brought on record.  Defendant no.4 also died on 20.6.1992

but his legal representatives were not brought on record and without even bringing

this fact to the notice of the trial Court, the plaintiff (respondent no.1 herein) and

defendant nos. 2, 6, 7 and 13 filed a compromise petition under Order 23 Rule 3 read

with  Section 151 CPC  and prayed that the suit be decreed in

....2/-

- 2 -

terms of the compromise.  In that petition, the plaintiff gave up defendant nos. 9 to 12

and 14 to 17.  By an order dated 30.6.1992, the trial court decreed the suit in terms of

the compromise.  Soon thereafter, the appellants herein filed two petitions, one under

Order 22 Rule 4 read with Section 151 CPC  for being brought on record as legal

representatives of defendant no.4 and the other under Order 9 Rule 13 read with

Section 151 CPC for setting aside decree dated 30.6.1992.  By two separate orders

dated 14.9.1992, the trial Court dismissed both the applications.  Civil Revisions filed

by the petitioners were dismissed by the High Court with liberty to them to pursue

other legal remedies.

We have heard learned counsel for the parties.

It  is  not in  dispute that  defendant  no.4 died on 20.6.1992 and his  legal

representatives were not brought on record.  It is also not in dispute that the trial

Court decreed the suit on 30.6.1992 in terms of the compromise petition without being

apprised of the factum of the death of defendant no.4.  In this view of the matter, the

only course open to the legal representatives of defendant no.4 (appellants herein) was

to apply for recall of the compromise decree. They could not have filed independent

suit challenging the compromise decree in view of the bar contained in Order 23 Rule

3A of CPC.  However, without appreciating the legal position in correct perspective,

the  trial  Court  dismissed  the  applications  filed  by  the  appellants  for  their

impleadment as parties and for setting aside the compromise decree and the High

Court dismissed the civil revisions filed by them.   

....3/-

- 3 -

Accordingly,  the  appeals  are  allowed,  the  impugned  orders  and  the

compromise decree are set aside and the suit is restored to its original file.  The trial

court shall now proceed in accordance with law.

Let hearing of the suit be expedited.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, March 30, 2009.