Sandhya Rose v. Shan George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937** **Mat.Appeal.No.683 of 2015** **O.P.No.469/2012 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA DATED 29.12.2014** ## **APPELLANT/PETITIONER:** **SANDHYA ROSE, AGED 32, D/O.V.P.JOSE, ROS GARDEN, VADASSERY HOUSE, KALADY DESOM, MELOOR VILLAGE, ERNAKULAM DISTRICT.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT/RESPONDENT:** **SHAN GEORGE, AGED 37, S/O.GEORGE K.MATHAI, KOCHIKUNNEL HOUSE, ORUMA 64, KOCHIKUNNEL ROAD, VADUTHALA 682 016** **BY ADV. SRI.JACOB ABRAHAM** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON** **21.01.2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PtK/** ## C.K.ABDUL REHIM & SHAJI P. CHALY, JJ. ----------------------------------------------- ## MA.No. 683 of 2015 ----------------------------------------------- Dated this the 21st day of January, 2016 ## JUDGMENT ## Abdul Rehim,J. A judgment and decree passed by the Family Court, Irinjalakuda based on consent of the parties in OP.No.469/12 is under challenge in this Mat. Appeal. A preliminary issue regarding maintainability of the appeal arises for consideration. 2. The original petition before the Family Court was instituted by the appellant herein, seeking return of gold ornaments and money. During pendency of the case, the issues involved were settled between the parties and a joint statement was filed in OP.No.469/12 and also in two other connected cases. The parties have agreed upon terms that the original petition can be decreed for a sum of Rs.10 lakhs . It was agreed upon that the amount will be paid on the date on which evidence will be adduced in an application for dissolution of MA.683/2015 2 marriage which is filed based on mutual consent, as OP.No.1093/2014. On the basis of the compromise statement the Family Court passed judgment in OP.No.469/12 on 29.12.2014 as follows:- _“Hence, OP is decreed for Rs.10 lakhs (Rupees Ten Lakhs only) subjected to the passing of decree to be obtained in OP.No.1093/2014. Order of attachment shall remain in force”._ 3. It is stated by the appellant that, subsequent to the impugned judgment the parties fell apart from the terms of the compromise and OP.No.1093/2014 was not been pursued and decreed. Learned counsel for the respondent pointed out that OP.No.1093/2014 was dismissed because the appellant herein had failed to adduce evidence when the case was posted for enquiry after completion of the statutory period. Learned counsel for the appellant contended that, since the impugned judgment is a decree passed subject to the decree to be obtained in OP.No.1093/2014, it can be challenged in appeal because no decree was passed in OP.No.1093/2014. On the other hand, counsel for the respondent contended that the appeal is not maintainable in view of provisions contained in section 19(2) of MA.683/2015 3 the Family Courts Act 1984. 4. The issue no more remains _res-integra._ In a decision of this court in **Velayudhan vs. Deepa & another (2012(1) KLJ 517)** a Division Bench had observed that, no appeal can be entertained based on a plea that one of the party had signed the consent under fear of being subjected to criminal cases. This court observed that, though that may be a matter for the court considering the compromise, on appropriate objection in that regard, it is not a ground for an appeal. It is observed that the law remain settled based on section 96(3) of the Code of Civil Procedure which provides that no appeal shall lie from a decree passed by the court with the consent of the parties. This court found that there cannot be any distinction on the question when it comes to the provisions of Family Courts Act, under section 19 (2). 5. Scope and ambit of section 96 (3) of the Code of Civil Procedure read with Order XXIII Rue 3 was considered by a learned judge of this court. In the decision in **Joy Francis and another vs. Joseph Netto & others (2012 (2) KLJ 325)** it is held that, the only course open to impeach a compromise decree MA.683/2015 4 by a party who is otherwise bound by such decree, is to approach the court which passed the decree, seeking adjudication of the validity of such decree, if at all he has got any ground entertainable under law to impeach such decree. Such an observation is made considering provisions contained in the proviso to Rule 3 of Order XXIII, as well as to the legal bar contained under Rule 3 A of order XXIII prohibiting a suit to set aside a decree on the ground that the compromise on the decree was not lawful. 6. In this regard, the court while deciding the case **Joy Francis (supra)** placed reliance on a decision of the hon'ble apex court in **Pushpa Devi Bhagat vs. Rajinder Singh and others (AIR 2006 (SC) 2628),** wherein it is reiterated that no appeal is filed against a decree having regard to the specific bar contained in section in Section 96(3) of the Code of Civil Procedure. It is observed therein that, the only remedy available to a party to consent a 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 is no compromise . It is further observed that in that event the court MA.683/2015 5 which recorded the compromise itself will 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 a 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. 7. In view of the legal position remaining settled as above, this court is convinced that the above Mat. Appeal instituted against the decree passed based on a consent of parties is not maintainable. Hence the appeal is hereby dismissed. 8. It is made clear that the parties will be at liberty to approach the court which passed the decree in order to seek appropriate remedy, to the extent permissible under law. C.K.ABDUL REHIM, JUDGE SHAJI P. CHALY, JUDGE Pmn/ MA.683/2015 6 ## C.K.ABDUL REHIM & MARY JOSEPH, JJ. ----------------------------------------- **WP(Crl). No. 421 of 2015** ---------------------------------------- **Dated this the 4[th] day of November, 2015** ORDER Abdul Rehim,J. MA.683/2015 7 Learned Government Pleader submitted that pursuant to the order of this court dated 12.10.2015 the 1[st] respondent had entrusted investigation of Crime No.954/2015 of Kottackal Police Station and Crime No.1005/2015 of Thanoor Police Station with the Deputy Superintendent of Police, Tirur. The cases are registered with respect to missing of the alleged detenu and the 3[rd] respondent respectively. It is submitted that the investigation so far conducted had revealed that the alleged detenu had gone along with the 3[rd] respondent, on 30.9.2015. It is stated that all efforts to trace out the missing persons are being pursued with the help of the cyber cell, concentrating on their telephone calls. It is submitted that despite intensified investigation conducted so far, no clue with respect to their whereabouts is obtained. 2. Under the above mentioned circumstances the case is adjourned with a specific direction to pursue vigorous investigation in the matter. The progress should be intimated to this court through report. Post on 23.11.2015. C.K.ABDUL REHIM, JUDGE MARY JOSEPH, JUDGE Pmn/ MA.683/2015 8