V. Joseph and Simon Varghese v. Valsamma Varghese and Marykutty Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938** ## **OP(C).No. 1250 of 2016 (O)** ## **---------------------------** ## **I.A.1718/2015 IN O.S. 432/07 OF ADDL. MUNSIFF COURT, ALAPPUZHA** ## **-----------------** ## **PETITIONER(S)/PETITIONERS/PLAINTIFFS:-:** **-----------------------------------------------------------** **1. V. JOSEPH (65), MUKKATHU CHIRAYIL, PULLANGADY, CHAMPAKULAM, NOW RESIDING AT THEYYATH PARAMBIL HOUSE, L.P. R.A. 47/1ST FLOOR, LINK VILLAGE ROAD, PULLEPPADY, KOCHI - 17.** **2. SIMON VARGHESE (56), MUKKATH CHIRAYIL, PULLANGADY, CHAMPAKULAM, NOW RESIDING AT MUKKATH CHIRAYIL, PERUMBAIKAD P.O., KOTTTAYAM.** ## **BY ADV. SRI.K.V.SADANANDA PRABHU** **RESPONDENT(S)/COUNTER PETITIONERS/DEFENDANTS:-:** **----------------------------------------------------------------------------------** **1. VALSAMMA VARGHESE (39), MUKKATHU CHIRAYIL, PULLANGADY, CHAMPAKULAM - 688 505.** **2. MARYKUTTY VARGHESE (78), MUKKATHU CHIRAYIL, PULLANGADY, CHAMPAKULAM - 688 505.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 1250 of 2016 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** - **P1 : TRUE COPY OF SURVEY PLAN SHOWING THE SCHEDULED PROPERTY AND THE PROPOSED DIVISION IN FAVOUR OF THE RESPONDENTS.** - **P2: TRUE COPY OF THE JUDGMENT IN OS 432/07 DATED 30.06.2010 OF ADDL MUNSIFF COURT ALAPPUZHA.** - **P3: TRUE COPY OF THE COMPROMISE RECORDED AND MADE PART OF THE DECREE OF THE MUNSIFF COURT ALAPPUZHA IN OS 432/07.** - **P4: TRUE COPY OF THE COMMISSION REPORT DATED 19.02.2013 ALONG WITH A PLAN, FILED IN WP.173/11 IN OS 432/07 OF THE MUNSIFF COURT ALAPPUZHA.** - **P5: PHOTOCOPY OF THE SURVEY PLAN SUGGESTING DEMARCATION OF 5 CENTS IN FAVOUR OF THE RESPONDENTS.** - **P6: TRUE COPY OF THE ORDER IN E.A.172/14 IN E.P.173/11 DATED** - **24.11.2014 OF THE ADDL MUNSIFF COURT ALAPPUZHA.** - **P7: TRUE COPY OF THE NOTICE DATED 11.02.2015 ISSUED TO THE RESPONDENTS BY THE PETITIONER.** - **P8: TRUE COPY OF THE ORDER IN IA.1718/15 IN OS 432/07 DATED 11.01.2016.** ## **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------------------------** ## **//TRUE COPY//** **P.A. TO JUDGE** **STK** **“C.R.”** ## **K. HARILAL, J.** ## **---------------------------** ## **O.P.(C) No.1250 of 2016** ## **---------------------------------------------Dated this the 23[rd] day of May, 2016** ## **JUDGMENT** The petitioners are the Decree Holders and the plaint schedule property belongs to them. There is an old dilapidated building in the middle of the said property, wherein the respondents/Judgment Debtors, who are the sister and mother of the petitioners, are residing. The petitioners requested them to vacate the said building; but the respondents were not willing to abide. In the result, the petitioners were constrained to file O.S.No.432/2007 on the files of Munsiff's Court, Alappuzha, seeking both prohibitory and mandatory injunction. In the above suit, the parties entered into a compromise; whereby the respondents agreed to vacate the scheduled property on receipt of 5 cents of property and an amount of Rs.1 lakh. Ext.P2 is the compromise decree passed in the above suit. 2. According to the petitioners, after the passing of the decree, in terms of Ext.P3 compromise, they promptly paid ## **O.P.(C) No.1250 of 2016 2** Rs.1 lakh on 19.03.2011, by a Demand Draft drawn in favour of the 1[st] respondent. But, the respondents did not vacate the property, as per the terms of the decree. Hence, the petitioners filed E.P.No.173/11, before the Execution Court. An Advocate Commissioner was appointed to prepare a plan with the aid of the Survey Superintendent and Ext.P4 is the Commission Report and plan, submitted by him. Since Ext.P4 plan was not in tune with the decree, in question, another Commissioner was appointed and he prepared Ext.P5 plan and produced the same before the court. However, eventually, the petitioners themselves had withdrawn the said Execution Petition. 3. After the withdrawal of E.P.No.173/2011, the petitioners again filed I.A.No.1718/2015 in O.S.No.432/2007, before the trial court, to enforce that part of the decree, which requires to be performed and defaulted by the respondents, as they failed to vacate the petition scheduled property, in compliance of Ext.P3 decree. But, the learned Munsiff dismissed the said I.A, by Ext.P8 order, on the finding that the trial court has become functus officio and thereby, the said I.A is not maintainable. The legality and propriety of the findings, ## **O.P.(C) No.1250 of 2016 3** whereby the court below dismissed I.A.1718/2015, are under challenge in this O.P.(C). 4. Heard the learned counsel for the petitioners. The crux of the arguments advanced by the learned counsel for the petitioners is that the trial court went wrong by finding that the trial court has become functus officio, after the passing of the decree and thereby, the trial court has lost jurisdiction and power to enforce the terms of compromise decree. The learned counsel for the petitioners drew my attention to Clause (9) of Ext.P3 compromise petition which made a part of the decree and contended that as per Clause (9), the trial court has jurisdiction and power to enforce the terms of decree, even after passing of the decree. In support of the above contention, the learned counsel cited the decisions reported in **Ganga Bai v. Vijay Kumar and Ors. AIR 1974 SC 1126 and Ajudhia Parshad v. Murli Dhar Madan Lal & Ors. AIR 1930 Lahore 936.** 5. I have carefully considered the arguments advanced by the learned counsel for the petitioners. In view of the contentions raised in this O.P.(C), the question to be considered is, whether the trial court has jurisdiction or power ## **O.P.(C) No.1250 of 2016 4** to enforce the terms of a compromise decree, after passing of the decree, in exercise of the power conferred to the trial court by the Decree Holder and Judgment Debtors as per the terms of compromise agreement, in this respect, entered into between them. Going by Exts.P1, P2 and P3, it could be seen that a compromise decree had been passed under Order XXIII Rule 3 of the CPC and the passing of decree is not disputed. In my view, it is needless to say that, after passing of the decree, as rightly pointed out by the lower court, the trial court has become functus officio and has no jurisdiction and power to enforce or interfere with the terms of decree. It is true that, as per Clause (9) of Ext.P3 Compromise Petition, the parties entered into an agreement that, if any party commits breach, the other party must issue a registered notice to the other party and inspite of the said registered notice, if the compromise is not complied, the aggrieved party can file a petition in the trial side itself for the redressal of the grievances. Going by explanation to Order XXIII Rule 3, it is seen that as per the Explanation, an agreement or compromise, which is void or voidable under the Indian Contract Act, shall not be deemed to be lawful, within the ## **O.P.(C) No.1250 of 2016 5** meaning of this Rule. In my view, Clause (9) in the agreement conferring jurisdiction to the trial court, to execute or enforce the terms of compromise decree, after passing of the decree, is an agreement not enforcible by law and is said to be void as per Section 2 (g) of the Indian Contract Act 1872. It is needless to say, as per law, decree can be executed by instituting an Execution petition, before the Execution Court, having jurisdiction and power to execute or enforce the decree only. In short, the parties cannot confer jurisdiction and power to the court by agreement in violation of the law governing jurisdiction and powers of court and even if they enter into such an agreement, in violation of law, such an agreement is void and not enforcible. 6. I have carefully considered the decisions cited by the learned counsel for the petitioners. I am of the view that the facts of the case are entirely different and nowhere in the above decisions, it is stated that the trial court has jurisdiction or power to enforce the terms of decree after passing of the decree. 7. In the above analysis, I find that, there is no illegality or impropriety in the findings; whereby the lower court ## **O.P.(C) No.1250 of 2016 6** dismissed the application. It is made clear that this judgment will not stand in the way of seeking proper remedies, in accordance with law. This O.P (C) is devoid of merits and dismissed accordingly. STK Sd/- **K. HARILAL JUDGE** //TRUE COPY// //P.A. TO JUDGE//