Jasna M v. Al Ameen and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943 MAT.APPEAL NO. 581 OF 2018** **AGAINST THE ORDER DATED 17.06.2017 IN I.A.NO.593/2017 IN OP** **374/2015 OF FAMILY COURT, MALAPPURAM** ## **APPELLANT/PETITIONER:** **JASNA M, D/O.HASSANKOYA, MADATHINGAL HOUSE, PUTHALAM SOUTH P.O., AREACODE, MALAPPURAM DISTRICT.** **BY ADVS. SRI.R.GOPAN SRI.SHAJIN S.HAMEED** ## **RESPONDENTS/RESPONDENTS:** **1 AL AMEEN, S/O.MUHAMMED, PANOLI THANGAL PARAMBU, KOZHAKOTTUR, AREACODE P.O., MALAPPURAM DISTRICT, PIN CODE-673639.** **2 MUHAMMED PANOLI, PANOLI THANGAL PARAMBU, KOZHAKOTTUR, AREACODE P.O., MALAPPURAM DISTRICT, PIN CODE-673639.** **3 KADEEJA PANOLI THANGAL PARAMBU, KOZHAKOTTUR, AREACODE P.O., MALAPPURAM DISTRICT, PIN CODE-673639.** **BY ADVS. SRI.P.SAMSUDIN SRI.JITHIN LUKOSE, P SAMSUDIN SRI.M.ANUROOP** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MAT.APPEAL NO. 581 OF 2018** 2 ## **J U D G M E N T** ## A.Muhamed Mustaque, J. The short issue in the appeal is, whether a petition to recall the compromise decree is maintainable before the Family Court or not. The petitioner alleges fraud in filing the petition to recall the compromise decree, which has been dismissed by the Family Court. Challenging the same, the petitioner approached this Court. 2. The matter is covered by the judgment of various courts including the Apex Court in **Janakiammal R. and Other v. S.K.Kumarasamy (deceased) though legal representatives and others [2021 KHC 6296]** . It is appropriate to refer paragraphs 51 to 55:- 51. The next judgment to be noted is Pushpa Devi Bhagat (Dead) Through LR. Sadhna Rai (Smt.) Vs. Rajinder Singh and Ors., (2006) 5 SCC 566, Justice R.V. Raveendran speaking for the Court noted the provisions of Order XXIII Rule 3 and Rule 3A and recorded his conclusions in paragraph 17 in following words:- “17. The position that emerges from the amended provisions of Order 23 can be summed up thus: (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in **MAT.APPEAL NO. 581 OF 2018** 3 Section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8-2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having **MAT.APPEAL NO. 581 OF 2018** 4 regard to the express bar contained in Section 96(3) of the Code.” 52. The next judgment is R. Rajanna Vs. S.R. Venkataswamy and Ors., (2014) 15 SCC 471 in which provisions of Order XXIII Rule 3 and Rule 3A were again considered. After extracting the aforesaid provisions, following was held by this Court in paragraph 11:- “11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order 23 Rule 3A CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the **MAT.APPEAL NO. 581 OF 2018** 5 court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3A CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court.” 53. The judgments of Pushpa Devi(supra) as well as Banwari Lal (supra) were referred to and relied by this Court. This Court held that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. 54. In subsequent judgment, Triloki Nath Singh Vs. Anirudh Singh (Dead) Through Legal Representatives and Ors., (2020) 6 SCC 629, this Court again referring to earlier judgments reiterated the same preposition, i.e., the only remedy available to a party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and separate suit is not maintainable. In paragraphs 17 and 18, following has been laid down:“17. By introducing the amendment to the Civil Procedure Code (Amendment) 1976 w.e.f. 1-2-1977, the legislature has brought into force Order 23 Rule 3A, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all. 18. Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a **MAT.APPEAL NO. 581 OF 2018** 6 compromise between the parties. Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties.The court can be instrumental in having an agreed compromise effected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Order 23 Rule 3 CPC before the court.” 55. The above judgments contain a clear ratio that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. In Suit No.1101 of 1987, the plaintiff prayed for a declaration declaring that the decree passed in O.S. No. 37 of 1984 is sham and nominal, ultravires, collusive, unsustainable invalid, unenforceable and not binding on the plaintiffs. We have noted the grounds as contained in the plaint to challenge the consent decree in foregoing paragraphs from which it is clear that the compromise, which was recorded on 06.08.1984 was sought to be termed as not lawful, i.e., void or voidable. On the basis of grounds which have been taken by the plaintiff in Suit No.1101 of 1987, the only remedy available to the plaintiff was to approach the court in the same case and satisfy the court that compromise was not lawful. Rule 3A was specifically added by the amendment to bar separate suit to challenge the compromise decree which according to legislative intent to arrest the multiplicity of proceedings. We, thus, do not find any error in the judgment of trial court and High **MAT.APPEAL NO. 581 OF 2018** 7 Court holding that Suit No.1101 of 1987 was barred under Order XXIII Rule 3A. 3. The petitioner alleged fraud in the petition to recall the compromise decree. 4. In the light of the judgment referred as above, it is for the Family Court to enquire into the allegation to recall the compromise decree. Therefore, we set aside the impugned judgment. We hold that the petition filed is maintainable. However, the Family Court will have to conduct an enquiry on merits, after giving an opportunity to both sides. We direct both parties to appear before the Family Court, Malappuram, on 24.03.2022. The Mat. Appeal is disposed of accordingly. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** AS **MAT.APPEAL NO. 581 OF 2018** 8 ## **APPENDIX** ## **RESPONDENTS' EXHIBITS:** |**ANN.R1(A)**|**TRUE COPY OF THE AGREEMENT DATED**| |---|---| ||**29.03.2017 SIGNED BY THE APPELLANT AND**| ||**1ST RESPONDENT.**| |**ANN.R1(B)**|**TRUE COPY OF THE JOINT STATEMENTS IN OP**| ||**374/2015 AND MC 199/2015 ON THE FILES OF**| ||**FAMILY COURT MALAPPURAM**| |**ANN.R1(C)**|**TRUE COPY OF THE ORDER DATED 29.03.2017**| ||**IN O.P.NO.374/2015 AND MC.NO.199/2015 ON**| ||**THE FILES OF FAMILY COURT MALAPPURAM**| |**ANN.R1(D)**|**TRUE COPY OF THE JUDGMENT IN WPC**| ||**15403/2017 ON THE FILES OF THIS HON'BLE**| ||**COURT DATED 12.05.2017**|