Pamella D’Cruz and others v Leelamma Alosious and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE SATHISH NINAN`** ``` MONDAY, THE 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 ``` ## **`OP(C) NO. 1705 OF 2014`** ## **`AGAINST THE ORDER/JUDGMENTOS 110/1999 OF PRINCIPAL SUB COURT /`** ## **`COMMERCIAL COURT, TRIVANDRUM`** ## **`PETITIONERS:`** - `1 PAMELLA D’CRUZ AGED 57 YEARS RESIDING AT 10/14-18 MOORAMBA ROAD,DEE WHY,NSW 2009,SYDEY, AUSTRALIA FROM PALM VILLA,STATION KADAVU, ATTIPRA VILLAGE,THIRUVANANTHAPURAM,KERALA` - `2 PATRICIA MADONA ROCKY AGED 55 YEARS RESIDING AT NO 17,JALAN BURUNG UPIH,TAMAN BUKIT MALURI,52100 KUALA LUMPUR` - `3 PAXY D’CRUZ RESIDING AT NO 17,JALAN BURUNG UPIH,TAMAN BUKIT MALURI 52100 KUALA LUMPUR,MALASIA` - `4 ANTO MARSHAL RESIDING AT NO 308,BLOCK M-15,PERSIARAN PANDAN I,PANDAN JAYA,51100,KUALA LUMPUR,MALASIA` - `5 SIMON EGBERT RESIDING AT NO 302,JALAN KAJANG JAYA,TAMAN KAJANG JAYA 43000,KAJANG,SELANGOR,MALAYSIA` ## **`PETITIONERS 3 TO 5 ARE REPRESENTED BY THE 1ST PETITIONER SHE BEING THE POWER OF ATTORNEY HOLDER`** ``` BY ADVS. SRI.K.B.PRADEEP SRI.ASHOK SURESH ``` ## **`RESPONDENTS:`** - `1 LEELAMMA ALOSIOUS W/O.ALOSIOUS,KATTUVILAKATHU VEEDU,NOW RESIDING AT PHALM VILLA,STATIONKADAVU,THIRUVANANTHAPURAM` - `2 MERI ANITHA D/O.LEELAMMA ALOSIOUS,,KATTUVILAKATHU VEEDU, NOW RESIDING AT PHALM VILLA, STATIONKADAVU,THIRUVANANTHAPURAM` - `3 THARA D/O.LEELAMMA ALSOCIOUS,KATTUVILAKATHU VEEDU, NOW RESIDING AT PHALM VILLA, STATIONKADAVU,THIRUVANANTHAPURAM` - `4 BABY DECSON S/O.ALOCIOUS FERNANDEZ, KATTUVILAKATHU VEEDU, NOW RESIDING AT PHALM` ``` O.P.NO.1705 OF 2014 ``` -2- ``` VILLA,STATIONKADAVU,THIRUVANANTHAPURAM 5ALOCIOUS FERANDEZ KATTUVILAKATHU VEEDU NOW RESIDING AT PHALM VILLA STATIONKADAVU THIRUVANANTHAPURAM BY ADVS. SRI.GOVIND PADMANAABHAN SRI.MANU V. SRI.RAM MOHAN.G. SRI.G.P.SHINOD ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.NO.1705 OF 2014 ``` -3- ``` Sathish Ninan, J. ============================== O.P.No.1705 of 2014 ========================== Dated this the 06[th] day of February, 2023 ``` ## **`JUDGMENT`** ``` The suit for declaration of title, mandatory injunction, and for setting aside a document, was settled before the Adalat. The plaintiffs were being represented by a power of attorney holder. The compromise was entered into through the power of attorney holder. Ext.P2 is the terms of settlement and Ext.P3 is the Award. As per the compromise, the suit was “closed”. ``` ``` 2.Through another power of attorney, the plaintiffs in the suit have filed this Original Petition challenging the compromise, alleging fraud on the part of the power of attorney holder who entered into the compromise. ``` ``` O.P.NO.1705 OF 2014 ``` -4- ``` 3.Heard Sri.K.B.Pradeep – learned counsel for the petitioners and Sri.G.P.Shinod – learned counsel for the respondent. ``` ``` 4.The respondent raised a preliminary objection with regard to the maintainability of the Original Petition. The issue regarding the maintainability is thus being considered. ``` ``` 5.Section 21 of the Legal Services Authorities Act, 1987 reads thus:- ``` **`“` ⸺** _**21. Award of Lok Adalat.**_ `(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court-free paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870).”` ``` 6.In terms thereof, the Award passed by the Adalat is deemed to be a decree passed by the Civil Court. Therefore, Ext.P3 Award with Ext.P2 ``` ## `O.P.NO.1705 OF 2014` -5- ``` terms thereto, is deemed to be a decree passed by the Court – the Subordinate Judge Court, Thiruvananthapuram. In Thomas v. Thomas Job [2005 (6) SCC 478], the Apex Court held that, the Award passed by the Lok Adalat is fictionally a deemed decree of the Court, and that the Courts have all the powers in relation thereto, as if, is a decree passed by itself. ``` ``` 7.Order 23 Rule 3 of the Code of Civil ``` ## `Procedure reads thus:` ``` “3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject- matter of the suit, the Court shall order such agreement, compromise or satisfaction to the recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to be suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject - matter of the suit]; ``` ``` O.P.NO.1705 OF 2014 ``` -6- ``` [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decided the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to the recorded, thinks fit to grant such adjournment.] ``` ``` [Explanation.- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.]” ``` ``` 8.In terms thereof, a challenge against a consent decree based on compromise, is to be made in terms of the proviso to Rule 3. ``` ``` 9.In Triloki Nath Singh v. Anirudh Singh (D) Thr.LRs and Others [2020 (6) SCC 629], the Apex Court held that the remedy available to a party to a consent/ compromise decree to avoid the 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. To the same effect are the judgments inBanwari Lal v. Smt.Chando Devi ``` ``` O.P.NO.1705 OF 2014 ``` -7- ``` (through L.R) and Another [1993 (1) SCC 581] and in Janakiammal R. and Others v. S.K.Kumarasamy (deceased) through legal representatives and Others [2021 (9) SCC 114]. ``` ``` 10.The learned counsel for the petitioners drew the attention of this Court to the decision of the Apex Court in State of Punjab v. Jalour Singh [AIR 2008 SC 1209] to contend that, an Original Petition under Article 227 of the Constitution is maintainable against the impugned award. Reading of the said judgment indicates that, in that case there was no settlement/compromise between the parties. The Apex Court held that no appeal lies against an Award by the Adalat. The said decision does not apply to the facts of the present case. ``` ``` 11.In the present case, the challenge against compromise being founded on fraud, necessarily evidence needs to be adduced. The petitioners have their remedy before the trial ``` ## `O.P.NO.1705 OF 2014` -8- ``` Court in terms of the proviso to Rule 3 to Order 23 CPC. In fact the petitioners have filed Ext.P4 before the learned Sub Judge in terms of Proviso to Order 23 Rule 3. The parties are to be permitted to adduce evidence on the application. ``` ``` Accordingly, this Original Petition ordered as hereunder: ``` _**(i)**_ `Ext.P4 application filed by the petitioners in terms of the Proviso to Order 23 Rule 3 shall be taken up, considered and disposed of on its merits.` _**(ii)**_ `Both sides shall be permitted to adduce evidence on the application.` _**(iii)**_ `If the application has been closed due to any reason, except being on the merits, the same shall be restored by the Court back to its files and shall be considered on the merits.` ``` O.P.NO.1705 OF 2014 ``` -9- _**(iv)**_ `The Trial Court shall issue fresh notice of appearance to the parties. The petitioners shall produce a copy of this judgment before the Trial Court to enable restoration/further proceedings in terms of restoration.` ``` Sd/- ``` ``` Sathish Ninan, Judge ``` ``` Raj. 06.02.2023. ``` ``` O.P.NO.1705 OF 2014 ``` -10- ## **`APPENDIX OF OP(C) 1705/2014`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S 110/1999 ``` ``` EXHIBIT P2 TRUE COPY OF THE COMPROMISE PETITION ``` ``` EXHIBIT P3 TRUE COPY OF THE AWARD DATED 12-06-2010 ``` ``` EXHIBIT P4 TRUE COPY OF THE PETITION I.A NO 4913/2011 ``` ``` EXHIBIT P5 TRUE COPY OF OBJECTIONS TO I.A NO 4913/2011 ``` ``` EXHIBIT P6 TRUE COPY OF THE POWER OF ATTORNEY DATED 14-01-1999 EXECUTED BY ROCKY DECRUZ & CELINE DECRUZ ``` ``` EXHIBIT P7 TRUE COPY OF THE POWER OF ATTORNEY DATED 25-09-2001 EXECUTED BY PAMELLA D'CRUZ ``` ``` EXHIBIT P8 TRUE COPY OF THE POWER OF ATTORNEY DATED 07-12-2001 EXECUTED BY PATRICIA MADONA ``` ``` EXHIBIT P9 TRUE COPY OF THE POWER OF ATTORNEY DATED 24-12-2001 EXECUTED BY PATRICIA MADONA ``` ``` EXHIBIT P10 TRUE COPY OF THE POWER OF ATTORNEY DATED 21-11-2001 EXECUTED BY PAXY JEMMA ``` ``` EXHIBIT P11 THE POWER OF ATTORNEY DATED 10-07-2014 EXECUTED BY 3RD PETITIONER IN FAVOUR OF THE 1ST PETITIONERE ``` ``` EXHIBIT P12 THE POWER OF ATTORNEY DATED 10-07-2014 EXECUTED BY 4TH PETITIONEER IN FAVOUR OF THE 1ST PETITIONER ``` ``` EXHIBIT P13 THE POWER OF ATTORNEY DATED 10-07-2014 EXECUTED BY 5TH PETITIONER ``` ``` O.P.NO.1705 OF 2014 ``` **==> picture [20 x 9] intentionally omitted <==** ``` IN FAVOUR OF THE 1ST PETITIONER ```