Israr Ahmed Deceased And Others vs Kaneez Alleged And Others

Pankaj Purohit, J

This writ petition has been filed under Article 227 of the Constitution of India, by the petitioners whereby they have put to challenge the order dated 16.09.2019, annexure no.1 to the writ petition, passed by learned Civil Judge (S.D.), Haridwar in Misc. Case No.5 of 2014 (under Order 9 Rule 13 of C.P.C.), whereby the application moved by the petitioners for setting aside the ex parte judgment dated 18.10.2013, the compromise decree has been set aside and further the judgment and order dated 26.09.2025, annexure no.2 to the writ petition, passed by learned Ist Additional District Judge in Misc. Civil Appeal No.117 of 2019, Israr Ahmed and others Vs. Smt. Kaneez and others, whereby the misc. civil appeal was dismissed and the order passed by learned trial court was affirmed.

It is contended by learned counsel for the petitioners that earlier Original Suit No.149 of 2005, Israr Ahmed Vs. Ameer Hasan and others, was instituted in the court of learned Civil Judge (S.D.) Haridwar. The said suit was decided on the basis of a compromise and decree was accordingly passed on 24.08.2011.

The said compromise decree was challenged by respondent no.1-Smt. Kaneez by filing a separate suit which was registered as Original Suit No.125 of 2013, Smt. Kaneez Vs. Israr Ahmed and others, in the court of learned Civil Judge (S.D.) Haridwar. The subsequent Original Suit No.125 of 2013 was decided ex parte vide judgment and order dated 18.10.2013.

The said ex parte judgment and decree was challenged by the petitioners by filing a Misc. Case No.5 of 2024 under Order 9 Rule 13 of C.P.C., Israr Ahmed Vs. Kaneez and others, which was rejected by the impugned order dated 16.09.2019.

The ground of challenging the ex parte judgment and decree was that the summons of the said suit was never served upon the petitioners.

The theory of non service of summons in Original Suit No.125 of 2013 was disbelieved by the learned trial court on the ground that summons were served upon the petitioners by refusal.

The matter was taken up by the petitioners before the learned Additional District Judge, Haridwar, in Misc. Civil Appeal No.117 of 2019, Israr Ahmed Vs. Kaneez and others, but misc. civil appeal met the same fate of dismissal. Aggrieved by the said orders the petitioners are before this Court.

It is argued by the learned counsel for the petitioners apart from non-service of the summons upon the petitioners of the Original Suit No.125 of 2013, the compromise decree cannot be challenged by a separate suit. In that view of the matter the decree was bad in the eyes of law and cannot sustain.

Learned counsel for the petitioners has relied upon Order 23 Rule 3A of the C.P.C. which is quoted hereinbelow:-

“[3A. Bar to suit.–No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.]”

Having heard learned counsel for the petitioners and having gone through facts of the case as well as provision relied upon by the petitioners, this Court prima facie is satisfied that the matter requires deliberation.

Issue notice to the respondents, returnable within six weeks.

Steps to be taken within three days.

List this case on 23.03.2026.

In the meantime, parties are directed to maintain status quo with regard to the property which is subject matter of Original Suit No.125 of 2013, Smt. Kaneez Vs. Israr Ahmed and others.