Party Not Arrayed As Respondent In Compromise Decree Can File Suit For Partition If Not Allotted Any Share: Karnataka High Court

The Karnataka High Court has held that a suit for partition filed by the plaintiff is maintainable if he was not impleaded as party respondent in the earlier suit wherein a compromise was arrived and court passed a decree without allocating any share in the property to the plaintiff.

A single judge bench of Justice CM Poonacha made the observation while hearing a petition filed by Mahesh who had sought to question the order of the trial court rejecting his application made under Order VII Rule 11 CPC, seeking to reject the plaint filed by Iswar and others as barred by law.

Mahesh argued that admittedly in the earlier suit OS No.101/2021 filed for partition a compromise decree was entered into between the parties and Iswar's father was allotted a share in the said compromise. Hence, it was contended that it is not open for Iswar to file the present suit and he has to claim a share only from the father. Further it was said the Trial Court erred in dismissing the application filed by Mahesh without noticing the bar contained under Order XXIII Rule 3A of the CPC.

The bench relied on coordinate bench judgment in Siddalingeshwar & Ors., v. Virupaxgouda & Ors. (2003) and held “It is clear that in the present case the plaintiff not being a party to OS No.152/2021 and the compromise in the said suit was not recorded after complying with Rule 3B of Order XXIII of the CPC is entitled to file the suit.”

Court noted that the Trial Court had considered Mahesh's application and having regard to the fact that Iswar was not a party to the earlier suit and he was not allotted a share, dismissed the application.

Thus it held “the petitioner – defendant No.5 (Mahesh) has failed in demonstrating that the order passed by the Trial Court is liable to be interfered with and the relief sought in IA.No.4 before the Trial Court is liable to be granted.”

Appearance: Advocate Chetan Munnoli for Petitioners.

Advocate S A Sondur FOR R2 TO R8.

Advocate L T Mantagani for R1.

Citation No: 2024 LiveLaw (Kar) 129

Case Title: Mahesh AND Ishwar & Others

Case No: C.R.P. No.100106 OF 2023

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