Abbas v Abdul Saheed / Abbas v Thajudheen / Abbas v Sharafudeen (CRP Nos. 381/2023, 379/2023, 382/2023)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945 ``` ## `CRP NO. 381 OF 2023` ``` ORDER DATED 28.10.2023 IN 4/2023 IN EP 1/2019, ASSISTANT SESSIONS ``` ``` COURT/SUB COURT, KOTTARAKKARA ``` ## `REVISION PETITIONER(S)/PETITIONER/JUDGMENT DEBTOR:` ``` ABBAS AGED 60 YEARS S/O MUHAMMED HANEEFA, ANAS MANZIL, CHADAYAMANGALAM P.O, CHADAYAMANGALAM MURI, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK, PIN - 691534 BY ADVS. K.S.HARIHARAPUTHRAN PINKU MARIAM JOSE ANIL KUMAR T.P. ``` ## `RESPONDENT( S )/RESPONDENT/DECREE HOLDER:` ``` ABDUL SAHEED AGED 65 YEARS S/O SUBAIR, PANAYIL VEEDU, AKKAL MURI, VELINALLOOR VILLAGE, KOTTARAKKARA TALUK, PIN - 691510 BY ADV A.T.ANILKUMAR ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.01.2024, ALONG WITH CRP.379/2023, 382/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945 ``` ## `CRP NO. 379 OF 2023` ``` EP 2/2019 OF ASSISTANT SESSIONS COURT/SUB COURT,KOTTARAKKARA AND OS ``` ``` 226/2012, ASSISTANT SESSIONS COURT/SUB COURT, KOTTARAKKARA ``` ## `REVISION PETITIONER(S)/PETITIONER/JUDGMENT DEBTOR/DEFENDANT:` ``` ABBAS AGED 60 YEARS S/O MUHAMMED HANEEFA, ANAS MANZIL,CHADAYAMANGALAM P.O, CHADAYAMANGALAM MURI, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK, PIN - 691534 BY ADVS. K.S.HARIHARAPUTHRAN PINKU MARIAM JOSE ANIL KUMAR T.P. ``` ## `RESPONDENT( S )/RESPONDENT/DECREE HOLDER/PLAINTIFF:` ``` THAJUDHEEN.M AGED 53 YEARS S/O MUHAMMED EBRAHIM, BUNGLAVIL HOUSE, AKKAL MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK., PIN - 691516 BY ADVS. A.T.ANILKUMAR A.T. V.SHYLAJA(K/1281/1995) ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.01.2024, ALONG WITH CRP.381/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 3 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945 ``` ``` CRP NO. 382 OF 2023 ``` ``` ORDER DATED 28.10.2023 IN EA 2/2023 IN EP 3/2019,ASSISTANT SESSIONS COURT/SUB COURT, KOTTARAKKARA ``` ## `REVISION PETITIONER(S)/PETITIONER/JUDGMENT DEBTOR:` ``` ABBAS AGED 60 YEARS S/O MUHAMMED HANEEFA, ANAS MANZIL,CHADAYAMANGALAM P.O, CHADAYAMANGALAM MURI, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM, PIN - 691534 BY ADVS. K.S.HARIHARAPUTHRAN PINKU MARIAM JOSE ANIL KUMAR T.P. ``` ## `RESPONDENT( S )/RESPONDENT/DECREE HOLDER:` ``` SHARAFUDEEN AGED 55 YEARS S/O PEERUKANNU RAWTHER, THADATHILVILA VEEDU, VELINALLOORE VILLAGE, KOTTARAKKARA TALUK, KOLLAM, PIN - 691510 BY ADV A.T.ANILKUMAR A.T. ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.01.2024, ALONG WITH CRP.381/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 4 **C.JAYACHANDRAN, J. -------------------------------------------C.R.P. Nos.381, 379 & 382 of 2023 -------------------------------------------Dated this the 09[th] day of January, 2024** ## **COMMON ORDER** The judgment debtor in three execution petitions, E.P. Nos.1, 2 and 3 of 2019, all of the Sub Court, Kottarakkara is the petitioner herein. He is aggrieved by the order dated 28.10.2023 in E.A. No.2/2023 in E.P. No.2/2019 arising from O.S. No.22/2013, as per which, the execution application preferred by the judgment debtor on the premise that there is no executable decree, has been dismissed by the learned Sub Judge. 2. Heard the learned counsel for the petitioner and the respondent in all the three Civil Revision Petitions. 3. Learned counsel for the common petitioner in the Civil Revision Petitions submits that the three ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 5 suits, from which the Execution Petitions arose, were referred to mediation in terms of Section 89(1)(d) of the Code of Civil Procedure and that on 03.10.2013, an agreement of compromise was drawn, as per which, the petitioner/defendant is bound to pay a sum of Rs.16,00,000/- together with interest to the respondent, failing which, it is stipulated that the plaint amount, together with interest, will be revived. According to the learned counsel, the mediation agreement was forwarded to the Court and on 05.10.2018, the suits were disposed of by the learned Sub Judge by recording as follows: “Matter settled in mediation centre by separate award”. 4. The Execution Petitions were filed and the judgment debtor (petitioner herein) filed an application under Section 47of the Code, alleging that there is no executable decree, which application was dismissed by virtue of the impugned order herein. ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 6 5. Learned counsel for the petitioner points out that as per Rule 25 of the Civil Procedure (Alternate Dispute Resolution) Rules, 2008, once a compromise agreement has been received from the mediator, it is incumbent upon the Court to issue notice to the parties within seven days, calling them to appear before the Court within fourteen days and the Court has to ascertain whether the compromise is legal or not. Thereafter, the Court has to pass a decree as if a compromise has been effected between the parties in terms of Order 23, Rule 3. Learned counsel attacked the decree in question alleging various infirmities. Firstly, it speaks of an award, whereas an award is passed only in cases covered by Clauses (a) to (c) of Section 89(1) of the C.P.C. and not in the case of mediation stipulated by Clause 89(1)(d). Secondly, learned counsel submits that no decree has been passed in terms of the compromise agreement; and ``` C.R.P. Nos.381 of 2023 & conn. cases ``` **==> picture [7 x 9] intentionally omitted <==** thirdly, it was submitted that the compromise agreement is not directed to form part of the decree. On merits, it was also pointed out that the compromise agreement drawn is not legal, for the reason that the petitioner was forced to affix his signature to that agreement, without having the opportunity to ascertain its terms. 6. These submissions were seriously refuted by the learned counsel for the respondent/decree holder. Learned counsel for the respondent towed in line with the learned Sub Judge in the impugned order, to submit that the decree in question will not become bad, only for reason of employing the term ‘award’. It was submitted that the compromise agreement forms part and parcel of the decree, though it is not so directed expressly. Therefore, there could hardly be any doubt as to what was intended by the decree. Nor it can be contended that the decree in question is not ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 8 executable for that reason. On merits, learned counsel for the respondent pointed out that the compromise agreement has been signed, not only by the petitioner but also by his counsel; and his present contention that he was forced to subscribe his signature, without looking into the terms, is nothing but a ruse to wriggle out of his obligations under the decree. 7. Having heard the learned counsel appearing on both sides, this Court finds that there exists a technical snag in the decree in question. 8. It is true that the compromise agreement has been appended to the decree. However, the decree, as extracted above, only refers to the fact that the matter is settled in mediation by a separate award. Even if it is conceded that employment of the term ‘award’, by itself, could not vitiate the decree, there is no direction that the suit is decreed in terms of the compromise agreement. Nor is there any direction ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 9 that the compromise agreement will form part of the decree. The first infirmity pointed above is of a more serious nature. 9. In the circumstances, this Court is of the opinion that the decree in question requires modification. The Court has to specifically state whether the suit is decreed in terms of the compromise agreement and shall also specify whether the compromise agreement shall form part of the decree. 10. Coming to the contention on merits, this Court, prima facie, finds merits in the arguments raised by the learned counsel for the respondent. As rightly pointed out, the compromise agreement has been signed not only by the petitioner herein, but also by his counsel. This Court is of the opinion that the procedure contemplated in Rule 25 of the Civil Procedure (Alternate Disputes Resolution) Rules is not intended to afford an opportunity to the parties to deny ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 10 the factum of arriving at a compromise. Instead, it is essentially concerned with the legality of the compromise arrived at, in which regard the satisfaction of the Court has to be recorded. 11. The legal requirements in this regard has already been laid down by a Division Bench of this Court in Sethumadhavan M. v. Savitha V.C. [(2019) 5 KHC 635]. This Court also notice the provision in Section 89(2)(d), which pertains to mediation, wherein the Court is enjoined to effect a compromise between the parties and to follow such procedure as may be prescribed. It has been clarified by the Division Bench in Sethumadhavan M. (Supra) that the compromise to be effected is the one in terms of Order 23 Rule 3. 12. Faced with the situation, learned counsel for the respondent seeks liberty to file necessary applications to modify the decrees, so as to comply the legal requirements. The respondent will be at liberty to ``` C.R.P. Nos.381 of 2023 & conn. cases ``` 11 do the same and the learned Sub Judge will dispose of such applications, in accordance with law, at the earliest. 13. Needless to say that the impugned order dated 28.10.2023, as also, the present Execution Petitions cannot be sustained. It will be open for the respondent to prefer fresh Execution Petitions, after getting the decrees modified, in accordance with law. The Civil Revision Petitions will stand disposed of accordingly. ## **Sd/-** ## **C. JAYACHANDRAN** **JUDGE** SKP/09-01