JUDGMENT Barkat Ali Zaidi, J.
1. The facts relating to this appeal are that the appellants here filed a Suit No. 584 of 1989, Jhuri and Ors. v. Eldan William in the court of Munsif City, Gorakhpur for declaration and permanent injunction restraining the defendants to interfere in the peaceful possession of the plaintiff on the agricultural land bearing Gata No. 738 Plot No. 1457 Min. area one acre 31 dismal 5 Kadi as detailed at the foot of the plaint, situated in village Basaratpur Tappa and Pargana Haveli, Tehsil Sadar, district Gorakhpur. The suit was decreed on a compromise vide order dated 18.5.1989.
2. The defendant-respondent Aldan William, thereafter filed a suit No. 1468 of 2000 for setting aside the compromise decree dated 18.5.1989, obtained on the ground of fraud and allegation was that the defendants Jhuri and Ors. manipulated the filing of the written statement in Suit No. 584 of 1989 by an imposter and the plaintiff-respondent never filed written statement and the written agreement and the compromise decree was, therefore, invalid and needed, therefore, to be set aside.
3. The Trial Additional Civil Judge (Jr.Div.) Court No. 20, framed issues and proceeded to decide issue No. 11 as preliminary issue and consequently, dismissed the suit as being barred by provisions of Order XXIII, Rule 3A of Civil Procedure Code and dismissed the suit under Order VII, Rule 11, C.P.C. The respondent here challenged this order dated 8.10.2004 by filing an Appeal being No. 32 of 2004 before the Court of Additional District Judge, Court No. 2, Gorakhpur. The learned Additional District Judge, reversed the order dated 8.10.2004 by its order dated 19.11.2005 and sent back the case for further proceedings before the Additional Civil Judge (Jr.Div.). It is against the said order of the Addl. District Judge, that the present appeal has been filed.
4. I have heard Sri A.P. Singh, learned Counsel for the appellant at the admission stage itself in this appeal.
5. The initial mistake which the Trial Civil Judge committed was to decide the issue. No. 11 as preliminary issue. This was the main issue in this case and the whole case revolved round this issue and the issue, could not, therefore, be held to be a preliminary issued and could not, therefore, have been decided as a preliminary issue. The Trial Civil Judge was, therefore, egregiously in error in holding that the suit was barred under Order XXIII, Rule 3A of Civil Procedure Code. It was by some convoluted logic that the Trial Civil Judge arrived at such a decision.
6. The same argument is here that since once the compromise decree was passed between the parties the suit to set aside the compromise decree on the basis of fraud, was not maintainable. The learned Counsel for the appellant has referred to two decisions, one of the Apex Court in case of Banwari Lal v. Smt. Chando Devi (through L.R.) and Anr. 1993 SC and FBRC 52, and the other of Allahabad High Court in the case of Khedoo and Ors. v. Third Additional District and Sessions Judge, Azamgarh and Ors. 1999 (2) AWC 1727 : 1999 (17) LCD 882, respectively. Both these decisions do not apply here as none of the two say that a suit brought on the ground of fraud for setting aside the decree on compromise, was not maintainable.
7. The obvious and clear defect in the argument of the appellant, that a suit on basis of such fraud would only be maintainable by a third party who was not party to the suit, while the plaintiff here was party to the suit, is that plaintiff-respondent says that he was not a party to the proceedings in Suit No. 584 of 1989 and Jhuri and Ors. by instituting an imposter, obtained a compromise decree by fraud. Since the plaintiff Aldan William says that he did not file a written statement and did not file a compromise, it was to be examined whether he filed the written statement or the compromise in person or whether a third party filed the written statement and the compromise in his name. Such a suit could not, therefore, be barred under Order XXIII, Rule 3A of the Civil Procedure Code and the order of the Addl. District Judge was, therefore, wholly justified.
8. Appeal dismissed in limine.