Koratty Amololbhavamatha Church v. Badarudheen and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **OP(C).No.468 OF 2021** **AGAINST THE ORDER DATED 30.03.2019 IN E.A.NO.245/2019 IN E.P.NO.115/2017 IN O.S.NO.41/2002 DATED 30-03-2019 OF PRINCIPAL SUB COURT,IRINJALAKUDA** ## **PETITIONER** **KORATTY AMOLOLBHAVAMATHA CHURCH, KORATTY DESOM, MURINGOOR THEKKUMURI VILLAGE, CHALAKUDY TALUK, REPRESENTED BY ITS PRESENT VICAR, REV FATHER JOSEPH BIJU THATTARRASSERY, AGED 44, S/O. DEVASSY RESIDING AT KORATTY AMOLBAVA MATHA CHURCH BUNGLOW, MURINGOOR THEKKUMURI VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENTS/RESPONDENTS:** **1 BADARUDHEEN, S/O. LATE FAKEER RAVUTHAR, MANAKULANGARAPARAMBIL, KOPPAM VILLAGE, AND KOPPAM DESOM, PALAKKAD POST 678 001. 2 AZEEZ, S/O. LATE FAKEER RAVUTHAR, RESIDING AT MANAKULANGARAPARAMBIL HOUSE, KHANNA NAGAR, MURINGOOR THEKKUMURI VILLAGE, CHALAKUDY TALUK, KINFRA PARK POST, 680 309. 3 SUDEEP, S/O. LATE FAKEER RAVUTHAR, RESIDING AT MANAKULANGARAPARAMBIL HOUSE, FATHIMA MANZIL, KONUR, MURINGOOR THEKKUMURI, VILLAGE, CHALAKUDY TALUK, NELUKETTU POST, 680 308.** O.P.(C)No.468/2021 -:2:- - **4 JINSHA, S/O. LATE FAKEER RAVUTHAR, RESIDING AT MANAKULANGARAPARAMBIL HOUSE, KONUR, MURINGOOR THEKKUMURI VILLAGE, CHALAKUDY TALUK, NELUKETTU POST, 680 308.** - **5 SULEKHA ALIAS CHELLAMMA, W/O. KMA RAZAK, KALAKKATTU HOUSE, SUVARNA, THOTTAKKATTUKARA, ALUVA WEST VILLAGE, THOTTKKATTUKARA POST 683 108.** - **6 KADEEJA BEEVI @ THAJU, W/O. KADERSHAH, KANJIRAPARAMBIL HOUSE, TAZHEKKADU VILLAGE, PARAMBIL HOUSE, THRISSUR DISTRICT, TAZHEKKAD POST 680 697.** - **7 M.P. ISMAIL, S/O. FAKEER RAVUTHRAR, MANAKULANGARAPARAMBIL HOUSE, MARAMBILY VILLAGE, PALLIPURAM, MUDIKKAL POST 683 547, ERNAKULAM DISTRICT.** - **8 BEEVIJAN @ AMMINI, W/O. BASHEER KALLIKUNNEL HOUSE, THODUPUZHA DESOM, AND VILLAGE, THODUPUZHA POST 685 585.** - **9 M.F. SHAJAHAN, S/O LATE FAKER RAVUTHAR, RESIDING AT MANAKULANGARAPARAMBIL HOUSE, MURINGOOR DESOM AND VILLAGE, CHALAKUDY TALUK, 680 309.** **10 M.F. SIMI, W/O. SHAJAHAN, PUTHANEETHIL HOUSE, KOORKKENCHERY VILLAGE AND DESOM, KOORAKANCHERRY POST, THRISSUR DISTRICT 680 007. R1 BY ADV. SMT.M.A.ZOHRA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C)No.468/2021 -:3:- Dated this the 23[rd] day of March,2021 ## J U D G M E N T The impugned dated 30.03.2019 in E.A.No.245/2019 in E.P.No.115/2017 in O.S.No.41/2002 is challenged by the petitioner. 2. The petitioner and respondents herein, who are parties to the E.P. settled their disputes by entering into a compromise dated 11.03.2019. The parties sought the execution court to record compromise which was however refused by the impugned order. The aggrieved petitioner challenges the order in this original petition. 3. The petitioner is an assignee of property obtained by the first respondent herein as 'F' schedule item No.1 under partition deed No.3896/2014. The first respondent had filed O.S.No.41/2002 for decree of partition and after passing of final decree, all the sharers including him entered into a compromise dated 21.11.2012 which was recorded in O.P.(C)No.2553/2012 on the file of this Court. 4. The petitioner purchased plaintiff's O.P.(C)No.468/2021 -:4:- share under Sale Deed No.5820/2011 much before the execution of partition deed No.3896/2014. He was neither a party to the suit nor final decree proceedings. Subsequently dispute as to possession arose between the petitioner and the plaintiff. This resulted in petitioner instituting E.P.No.115/2017. 5. In the course of the execution proceedings, petitioner as well as all the judgment debtors in the E.P. settled the disputes by virtue of a memorandum of agreement dated 11.03.2019 whereby the first respondent/plaintiff made it clear that he has no rights or interests in respect of property sold to the petitioner under Sale Deed No.5820/2011. It further was acknowledged that the property sold to the petitioner under the deed was 'F' schedule item No.1 obtained by the first respondent under the partition deed No.3896/2014. This acknowledgement was sufficient to settle the disputes between the petitioner and first respondent. The first respondent further agreed to deliver possession of the property as well as take steps for effecting mutation of the property as well. O.P.(C)No.468/2021 -:5:- 6. Looking at the terms of compromise, it is clear that what the parties intended was satisfaction or adjustment of the rights crystalised under the compromise decree dated 21.11.2012. The instant compromise dated 11.03.2019 cannot be treated on par with a compromise admissible under Order XXIII Rule 1 of the Code of Civil Procedure,1908(for short, 'the CPC'). The execution court while passing the impugned order took the view that execution court has no power to permit parties to enter into compromise in view of implied bar under Order XXIII Rule 4 of the CPC. 7. The learned counsel for the petitioner submitted that the view taken by the court below is not sound and militates the view taken by the Hon'ble Apex Court in Motilal Banker (dead) by his Legal Representatives v. Maharaj Kumar Hasan Khan [AIR 1968 SC 1087]. 8. I heard the learned counsel for the respondents also. 9. The learned counsel appearing on either side did not support the impugned order passed by the court below. What appears from the compromise O.P.(C)No.468/2021 ## -:6:- dated 11.03.2019 is that the parties wanted was satisfaction or adjustment of the to be recorded. 10. Order XXI Rule 1 & 2 provide provisions casting obligation on the execution court to record satisfaction or adjustment of rights of parties acquired under the decree. Satisfaction or adjustment of rights under the decree does not stand on par with compromise contemplated under Order XXIII Rule 3 of the CPC. What Order XXIII Rule 3 cautions is that parties cannot vary or rewrite a decree binding on them. The compromise dated 11.03.2019 does not disclose that parties ever wanted to redefine the rights contrary to the decree. 11. The impugned order, therefore, cannot be sustained. Giving effect to the legal position canvassed by the learned counsel appearing on both sides, I am of the opinion that the impugned order is liable to be interfered with. In the result, original petition succeeds and the impugned order dated 30.03.2019 in E.A.No.245/2019 in E.P.No.115/2017 in O.S.No.41/200 is set aside. The execution court shall record compromise dated 11.03.2019 and O.P.(C)No.468/2021 -:7:- dispose of the execution petition in terms thereof. All pending interlocutory applications will stand closed. Sd/- ## T.V.ANILKUMAR,JUDGE DST //True copy/ P.A.To Judge O.P.(C)No.468/2021 -:8:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SCHEDULE AND THE DESCRIPTION OF THE PROPERTY SET APART IN FAVOUR OF THE 1ST RESPONDENT, BY THE ADVOCATE COMMISSIONER DT. NIL.** **EXHIBIT P2 TRUE COPY OF THE MEDIATION AGREEMENT DT. 21/11/2012 ENTERED INTO BETWEEN THE PARTIES IN OP(C)2553/2012 WITH THE INDULGENCE OF THE MEDIATOR HIGH COURT OF KERALA.** **EXHIBIT P3 TRUE COPY OF JUDGMENT DT. 3/12/2012 PASSED BY THIS HONOURABLE COURT IN OP(C) 2553/12 PURSUANCE TO THE AGREEMENT OF MEDIATION.** **EXHIBIT P4 TRUE COPY OF THE PETITION OF COMPROMISE PETITION EA 245/19 DATED 11/3/2019 ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENTS IN EP 115/17 IN OS 41/2002 OF THE SUB COURT AT IRINJALAKUDA.** **EXHIBIT P5** **TRUE COPY OF ORDER DATED 30/3/2019 IN EA 245/2019 IN EP 115/2017 IN OS 41/2002 OF THE SUB COURT AT IRINJALAKUDA.** **RESPONDENTS' EXHIBITS: NIL**