High Court of KeralaDivision Bench2023-01-20Appeal allowed; the Family Court’s order settin...

Mat.Appeal No.810 of 2022

Case / Petition Number:Mat.Appeal No.810 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Hon. Anil K. Narendran
Hon. P.G. Ajithkumar
Judgment Date: 2023-01-20
Court Decision / Holding: The order of the Family Court dated 03.11.2022 is set aside. IA 5/2022 in OP 780/2021 is allowed. The Family Court will proceed with OP 780/2021 in accordance with law.
Final Disposition: Appeal allowed; the Family Court’s order setting aside/altering the compromise decree is overturned; the Family Court shall proceed with OP 780/2021 in accordance with law.

Parties to the Case

Appellants / Petitioners

Dr. Drisya D.T.
Deepshika D.K.
Deebjith D.K.

Respondents

Dr. Kiran
Dr. K.R. Thankappan
Valsa P.T.

Legal Representation & Advocates

Counsels for Petitioners

• M.R. Dhanil
• Senitta P. Jojo

Counsels for Respondents

• S. Majida S Ajikhan
• M Muhammed Suhail K.H

Case Synopsis & Summary

The Kerala High Court heard Mat.Appeal No.810 of 2022 challenging a Family Court order dated 03 November 2022 (I.A.5 of 2022 in O.P.780 of 2021) that recorded a compromise decree arising from a settlement between the wife (appellants) and the respondents in a matrimonial matter. O.P.780/2021 had been filed seeking to set aside a gift deed (No. 914 of 2019) and involved multiple related disputes including dissolution of marriage petitions, guardianship for the children, and maintenance matters. The Family Court recorded the compromise Ext. P1, and allowed the petition to the extent of the compromise, stating that the compromise would form part of the decree and that attachments would be lifted, while listing several other cases between the parties as being settled by the terms of the agreement. The appellants contend that Annexure A1 (the agreement) was misread; Annexure A2 (the judgment) purportedly states that all disputes between the parties are settled, which they argue extends beyond what was agreed, and was obtained by fraud. They seek review under Order XXIII, Rule 3 CPC, citing Ajanta LPP v. Casio and Janakiammal. The respondents argue the parties understood the terms and that once a compromise is lawful, courts must record it and decree accordingly; fraud permits recall by interlocutory application. The court, citing Sindhu P.K. and Thriloki Nath Singh, upholds that compromise must be recorded if lawful, but finds noncompliance with leave for minors and errors in Annexure A2, ultimately allowing the appeal and directing further proceedings in accordance with law.

Provisions of Law Cited

Section 19(1) of the Family Courts Act, 1984Order XXIII, Rule 3 of the Code of Civil Procedure, 1908Order XXIII, Rule 3AOrder XXXII, Rule 7Section 2(2) of the CPCProviso to Order XXIII, Rule 3

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that Annexure A1’s terms were misinterpreted; Annexure A2 records a broad settlement that extends beyond the specific agreement, and was obtained by alleged fraud. They assert that Annexure A1 was understood by the first appellant to dispose of O.P.780/2021 only, and that the court’s decree cannot be read to cover every pending dispute. They rely on Ajanta LPP v. Casio Keisanki Kabushiki Kaisha etc. and R. Janakiammal to argue that fraud or misrepresentation can be challenged by interlocutory recall, and that the provisions of Order XXIII, Rule 3 and its proviso must be applied to determine lawfulness before recording a compromise. They also argue that the absence of leave under Order XXXII, Rule 7 for minors renders the compromise decree defective and liable to recall.

Contentions of Respondents

The respondents submit that the first appellant understood all clauses in Annexure A1 and signed accordingly; Annexure A2 accurately records the compromise and the parties’ consent to a decree; once a compromise is lawful and duly recorded, there is no right to challenge by appeal or review, except in cases of fraud requiring interlocutory recall as recognized by Sindhu P.K. and Thriloki Nath Singh. They point to the Family Court’s reasoning that Annexure A1’s clause 5 contemplated settlement of other cases but did not explicitly delineate how those cases would be settled; they argue that the court was bound to record and decree if the compromise was lawful, subject to leave requirements for minors which were not expressly violated here, since the order allowed the decree. The respondents assert no fraud or misrepresentation warranting recall beyond the contested interpretation of clause 5.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Ajanta LPP v. Casio Keisanki Kabushiki Kaisha d/b/a Casio Computer Co. Ltd. & another	(2002) 5 SCC 449	Mentioned Only	Cited by appellants; the court does not rely on it to support the principal outcome.
R. Janakiammal v. S.K. Kumaraswamy (deceased) (through LRs. and others)	(2021) 9 SCC 114	Mentioned Only	Cited but not central to the court’s reasoning in the present decision.
Sindhu P.K. v. Sreekumar P.A. and another	(2015) 3 KLT 869	Positive	Used by the court to affirm that when a compromise is lawful and filed before the court, it must be recorded and a decree passed; challenges may only be via interlocutory recall in fraud.
Thriloki Nath Singh v. Anirudh Singh (D) through LRs. and others	(2020) 6 SCC 629	Positive	Cited to support the proposition that a lawful compromise filed before the court must be recorded and a decree passed.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Mat.Appeal No.810 of 2022 and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944 MAT.APPEAL NO. 810 OF 2022** **AGAINST THE ORDER DATED 03.11.2022 IN I.A.NO.5 OF 2022 IN O.P.NO.780 OF 2021 ON THE FILES OF THE FAMILY COURT,** ## **THIRUVANANTHAPURAM** ## **APPELLANTS:** - **1 DR. DRISYA D.T., AGED 37 YEARS, D/O. THANKAMANY, RESIDING AT A4, TC. NO. 4/1870(4), A4 (4) DEEPAM, PANDITS COLONY, KOWDIAR P.O., THIRUVANANTHAPURAM, PIN – 695003.** - **2 DEEPSHIKA D.K. AGED 8 YEARS, D/O. DR.KIRAN, REP. BY THE 1ST APPELLANT DR. DRISYA, WHO IS THE MOTHER AND GUARDIAN, PIN – 695003.** - **3 DEEBJITH D.K. AGED 5 YEARS, S/O. DR. KIRAN, REP. BY THE 1ST APPELLANT DR. DRISYA, WHO IS THE MOTHER AND GUARDIAN, PIN – 695003.** **BY ADVS.** **M.R.DHANIL** **SENITTA P. JOJO** 2 Mat.Appeal No.810 of 2022 ## **RESPONDENTS:** - **1 DR. KIRAN AGED 40 YEARS, S/O. DR. THANKAPPAN, RESIDING AT SAMUAL GARDEN, ARCHANA NAGAR, E34, NEW RAYS (TC 6/2331), PONGUMOODU, ULLOOR VILLAGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN – 695011.** - **2 DR. K.R. THANKAPPAN, AGED 73 YEARS, S/O. SAKKAI, RESIDING AT SAMUAL GARDEN, ARCHANA NAGAR, E34, NEW RAYS (TC 6/2331), PONGUMOODU, ULLOOR VILLAGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN – 695011.** - **3 VALSA P.T., AGED 71 YEARS, W/O. DR. THANKAPPAN, SAMUAL GARDEN, ARCHANA NAGAR, E34, NEW RAYS (TC 6/2331), PONGUMOODU, ULLOOR VILLAGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN – 695011.** **BY ADVS.** **S. MAJIDA S AJIKHAN.M MUHAMMED SUHAIL K.H.** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 03.01.2023, THE COURT ON 20.01.2023 DELIVERED THE FOLLOWING:** 3 Mat.Appeal No.810 of 2022 ## **“C.R.”** ## **JUDGMENT** P.G.Ajithkumar, J. The order dated 03.11.2022 of the Family Court, Thiruvananthapuram in I.A.No.5 of 2020 in O.P.No.780 of 2021 is under challenge in this appeal filed under Section 19(1) of the Family Courts Act, 1984. 2. I.A.No.5 of 2022 was filed by the appellants, who are the wife and children of the 1[st] respondent, seeking review of the judgment dated 01.07.2022 in O.P.No.780 of 2021. As per the said judgment, O.P.No.780 of 2021 was allowed in terms of the compromise entered into between the parties. The Family Court, after hearing both sides, dismissed I.A.No.5 of 2022. 3. This appeal was admitted on 21.11.2022. The respondents entered appearance through their learned counsel. 4. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents. 4 Mat.Appeal No.810 of 2022 5. O.P.No.780 of 2021 was filed by the appellants seeking a decree setting aside gift deed No.914 of 2019 of Sub Registry Office, Pattom. Apart from the said case, several other litigations between the parties are pending. The 1st respondent filed O.P.No.223 of 2018 for a decree of dissolution of marriage. He also filed O.P.No.224 of 2018 for declaring him the guardian of the children and to get their permanent custody. The appellants fled M.C.No.160 of 2018 claiming maintenance. Two more cases, namely, O.P.No.753 of 2021 and O.P.No.3004 of 2021 between them are also pending consideration of the Family Court. It was in such circumstances, a compromise, Ext.P1 was entered into and signed by the 1[st] appellant and the respondents, which was filed before the Family Court. The Family Court as per the judgment dated 01.07.2022 recorded that compromise and allowed O.P.No.780 of 2021. The judgment reads:- “Petition for setting aside the gift deed No.914 of 2019 and for temporary injunction. Advanced. Both parties and their counsels are present. Matter along with all other connected matters 5 Mat.Appeal No.810 of 2022 are settled in the counselling. Compromise filed. OP allowed in terms of compromise. The compromise shall form part of the decree. The attachment is lifted. Communicate the order.” 6. The appellants have filed I.A.No.5 of 2022 in O.P.No.780 of 2021 seeking to review the said judgment dated 01.07.2022. The contentions of the appellants were that the 1[st] appellant was made to believe that by such a compromise, O.P.No.780 of 2021 would alone be disposed of; whereas in the said judgment rendered on recording the settlement agreement, it was stated that all litigations between appellants and the respondents pending before the Family Court Thiruvananthapuram and also this Court have been settled. Although the Family Court was apprised of the error thereby occurred, the review petition was dismissed. 7. The learned Counsel appearing for the appellants would contend that a reading of Annexure A1, the settlement agreement itself it is evident that the purport of the same was to settle the subject matter of O.P.No.780 of 2021 and 6 Mat.Appeal No.810 of 2022 no other case. Now, the respondents would interpret the compromise and also the judgment in O.P.No.780 of 2021 to mean that all cases pending between the parties are settled as per the terms of Annexure A1. The learned Counsel appearing for the appellants would further submit that Annexure A1 as well as Annexure A2 judgment dated 01.07.2022 are vitiated by fraud, and therefore the same could be challenged by filing an interlocutory application. According to the learned counsel, a separate suit for challenging Annexure A2 judgment is barred under the provisions of Order XXIII, Rule 3A of the Code of Civil Procedure, 1908 and the remedy is to approach the same court by filing an application. In this regard the learned counsel placed reliance on the decisions in **Ajanta LPP v. Casio Keisanki Kabushiki Kaisha d/b/a Casio Computer Co. Ltd. & another [(2002) 5 SCC 449]** and **R.Janakiammal v. S.K.Kumaraswamy (deceased) (through LRs. and others [(2021) 9 SCC 114]** . 7 Mat.Appeal No.810 of 2022 8. The learned counsel appearing for the respondents, on the other hand, would submit that the 1[st] appellant, who is a Doctor by profession holding a Post Graduate Decree in Medicine, after understanding all the clauses in Annexure A1 has signed it. Her counsel also had signed Annexure A1. Various clauses in Annexure A1 are stated with clarity and after understanding the same only, the 1st appellant has signed the compromise. After that, she cannot be allowed to retract and assail Annexure A2 judgment. 9. The learned counsel for the respondent invited our attention to **Sindhu P.K. v. Sreekumar P.A. and another [(2015) 3 KLT 869]** and **Thriloki Nath Singh v. Anirudh Singh (D) through LRs. and others [(2020) 6 SCC 629]** in order to fortify her contention that once the compromise was found to be lawful, the court was obliged to record the same and no challenge to the same by way of appeal or review can be entertained. In Apex Court in **Thriloki Nath Singh** (supra) and this Court in **Sindhu P.K.** (supra) took the view that when a compromise is filed before the court and the 8 Mat.Appeal No.810 of 2022 court is satisfied that it is lawful and entered into between the parties knowing the contents of the agreement, the court is obliged as per the provisions of Order XXIII, Rule 3 of the Code to record the compromise and pass a decree in terms of the same. There cannot be any dispute with respect to the said proposition of law. Similarly, the law is settled that when a compromise decree is a product of fraud played upon the court, the aggrieved can approach the same court by filing an interlocutory application to recall the decree. The proviso to Order XXIII Rule 3 of the Code obligates the court to decide the question of lawfulness of the compromise, if one of the parties alleges that the settlement agreement is not lawful. But that is possible at a stage before recording the compromise and passing the decree. 10. Annexure A1 settlement agreement was presented before the Family Court and acting upon it Annexure A2 judgment was passed. In terms of Annexure A2, O.P.No.780 of 2021 was allowed. In Annexure A1, it has been stated that the following cases between the same parties are pending 9 Mat.Appeal No.810 of 2022 ## consideration,- ## A. Before the High Court - 1) Mat.Appeal No.169 of 2022 2) Mat.Appeal No.668 of 2021 - 3) O.P.(FC) No.13 of 2022 - 4) R.P.(FC) No.264 of 2021 ## B. Before the Family Court, Thiruvananthapuram - 1) O.P. No.3004 of 2021 2) O.P.No.753 of 201 - 3) O.P.No.780 of 2021 ## 11. Clause No.(5) in Annexure A1 reads,- “5. ഇര�കക�കള�� തമ�ൽ കകരളത�ല� കക�ടത�കള�ൽ (ബഹ�: ഹഹക��ടത�, ക�ട��ബകക�ടത� ത�ര�വനനപ�ര�) .” ന��ന�ൽ��ന എല� കകസ�കള�� ഒത�ത കരണത�ണ# It is the said clause that is now interpreted that both parties settled all the cases between them. 12. When a suit/petition is settled, the same can be disposed of either under Rule 1 of Order XXIII as withdrawn or a compromise decree can be passed under Rule 3 of Order XXIII of the Code. Clause (5) in Annexure A1 only says that other cases between the parties would have to be settled. In what way those cases should be settled has not been 10 Mat.Appeal No.810 of 2022 mentioned. On the basis of such a clause, either Rule 1 or Rule 3 of Order XXIII of the Code can be invoked. If there is a compromise and a decree based on the same has to be passed, the compromise agreement shall ordinarily be an executed one and not merely an executory one. 13. As per the definition of the decree in Section 2(2) of the Code a decree shall be the adjudication of the matters in controversy in the suit. It can either be preliminary or final. On the basis of an agreement by which the parties agreed to settle a suit, without saying how is the suit to be decided and what are the terms of compromise, no decree can be passed. If the suit is to be withdrawn also, there shall be a stipulation to that effect. Clause (5) or any other clause in Annexure A1 does not enable this Court or the Family Court, Thiruvananthapuram to dispose of any of the cases mentioned above except, O.P.No.780 of 2021. Therefore, the apprehension of the appellant that Annexures A1 and A2 would be interpreted to mean that all the aforesaid pending cases have been settled is genuine. In view of that Annexure A2 judgment is wrong. 11 Mat.Appeal No.810 of 2022 14. The 2[nd] and 3[rd] appellants are minors. When a compromise decree is passed in a suit to which minor is a party, it is the mandate of Order XXXII Rule 7 of the Code to obtain leave of the court before the disposal of the suit. O.P.No.780 of 2021 was allowed in terms of Annexure A1 compromise without obtaining such a leave from the court. Leave of the court is a mandatory pre-requirement when the suit is compromised by the next friend or guardian. In that view of the matter, Annexure A2 judgment by which the compromise was recorded is an apparent error. In such circumstances, the Family Court ought to have allowed the review petition, I.A.No.5 of 2022 in O.P.No.780 of 2021. The order of the Family Court dated 03.11.2022 is therefore set aside by allowing this appeal. I.A.No.5 of 2022 stands allowed. The Family Court will proceed with O.P.No.780 of 2021 in accordance with law. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 12 Mat.Appeal No.810 of 2022 ## **APPENDIX OF MAT.APPEAL 810/2022** ## **PETITIONER ANNEXURES** **ANNEXURE A1 CERTIFIED COPY OF THE AGREEMENT DATED 01/07/2022. ANNEXURE A2 CERTIFIED COPY OF THE JUDGMENT DATED 01/07/2022 IN OP NO. 780/2021 OF THE FAMILY COURT, THIRUVANANTHAPURAM. ANNEXURE A3 TRUE COPY OF THE DRAFT MEMORANDUM OF AGREEMENT DATED 05/07/2022 RELATED TO MAT. APPEAL NO.668 OF 2021. ANNEXURE A4 TRUE COPY OF THE DRAFT MEMORANDUM OF AGREEMENT DATED 06/07/2022 RELATED TO RP(FC) NO.264 OF 2021. ANNEXURE A5 TRUE COPY OF THE REVIEW PETITION NUMBERED AS IA NO. 5/2022 IN OP NO. 780/2021 OF THE FAMILY COURT, THIRUVANANTHAPURAM, DATED 29/08/2022. ANNEXURE A6 TRUE COPY OF THE OBJECTION, DATED 10/10/2022 FILED BY THE RESPONDENTS IN THE REVIEW PETITION NUMBERED AS IA NO. 5/2022 IN OP NO. 780/2021 OF THE FAMILY COURT, THIRUVANANTHAPURAM.**