Venugopalan A.K. v. Pushpavally

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936 OP (FC).No. 1172 of 2012 (R) ----------------------------EP 32/2011 of FAMILY COURT, THALASSERY PETITIONER: ---------------- VENUGOPALAN A.K. S/O.GOPALAN NAIR, AGED 57 YEARS, ERANCHERY HOUSE PINARAYI AMSOM NEAR EAST, THALASSERY TALUK KANNUR DISTRICT. BY ADV. SRI.T.R.RAVI RESPONDENT: -------------------- PUSHPAVALLY D/O.PADMANABHAN NAMBIAR, AGED 46 YEARS ERACHERY PARAMBIL, SAYUJIAM, PINARAYI AMSOM THALASSERY TALUK, KANNUR DISTRICT, PIN-670 104. BY ADV. SRI.JOBY JACOB PULIKKAKUDY THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 1-8-2012, THE COURT ON 31-3-2014 DELIVERED THE FOLLOWING: OP (FC).No. 1172 of 2012 ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF RAZI IN M.C.320/11. - EXT.P2 : TRUE COPY OF THE REGISTERED NOTICE DT.30.9.2011 SENT BY THE PETITIONER TO THE RESPONDENT. - EXT.P3 : TRUE COPY OF NOTICE ISSUED BY THE RESPONDENT THROUGH AN ADVOCATE DT.20.9.2011. - EXT.P4 : TRUE COPY OF REPLY SENT BY THE PETITIONER THROUGH COUNSEL DT.7.10.2011. - EXT.P5 : TRUE COPY OF EXECUTION PETITION FILED BY THE RESPONDENT BEFORE FAMILY COURT, THALASSERY - EXT.P6 : TRUE COPY OF COUNTER STATEMENT FILED BY THE PETITIONER. EXT.P7 : TRUE COPY OF JUDGMENT DT.23.2.2012 PASSED BY THIS HON'BLE COURT IN OP(FC) 126/2012. - EXT.P8 : TRUE COPY OF ORDER DT.22.3.2012 IN E.P.32/2011 OF FAMILY COURT, THALASSERY - EXT.P9 : TRUE COPY OF DRAFT GIFT DEED DT.5.1.2012 PRODUCED BY THE RESPONDENT. - EXT.P10: TRUE COPY OF OBJECTION IN MAY 2012 FILED BY THE PETITIONER BEFORE FAMILY COURT IN E.P.32/2011. ## RESPONDENT'S EXHIBITS: NIL //TRUE COPY// PA TO JUDGE ## **C.R.** # **K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** O.P.(F.C.) No.1172 of 2012 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 31[st] day of March 2014 ## **JUDGMENT** ## K.T. Sankaran J., The petitioner is the husband of the respondent. There were disputes between them. The respondent filed M.C. No.142 of 2009 on the file of the court of the Judicial First Class Magistrate Court, Thalasserry against the revision petitioner under the Domestic Violence Act. She also filed M.C. No.320 of 2011 on the file of the Family Court, Thalasserry claiming enhancement of maintenance. The disputes between the parties, including the disputes involved in the aforesaid cases, were settled between the parties before Lok _O.P.(F.C.) No.1172 of 2012_ **==> picture [14 x 9] intentionally omitted <==** Adalath conducted at Thalasserry. As per the terms of the settlement, the revision petitioner had to execute a gift deed, in respect of 15 cents of land situated on the rear side of his house, in favour of the respondent on 30.9.2011. Thereafter, the parties had to file an application under Section 13-B of the Hindu Marriage Act. It was also agreed that on giving evidence in joint petition, the revision petitioner would pay a sum of `5,00,000/- to the respondent. It was also agreed that the respondent would withdraw M.C. Nos.1420 of 2009 and 320 of 2011 referred to above. 2. According to the respondent, the revision petitioner did not hand over the necessary documents for preparing the gift deed. She sent a notice dated 30.9.2011 to the revision petitioner requesting him to appear before the Office of the Sub Registrar, Thalasserry on 1.10.2011, with necessary documents. On 30.9.2011 the revision petitioner also sent a notice to the _O.P.(F.C.) No.1172 of 2012_ **==> picture [14 x 9] intentionally omitted <==** respondent stating that since the respondent committed wilful default in complying with the terms of the settlement, he was withdrawing from the settlement entered into between the parties. 3. Complaining that the revision petitioner failed to execute the gift deed, the respondent filed E.P. No.32 of 2011 before the Family Court, Thalasserry. The revision petitioner filed a counter in that execution petition stating that it was only due to the wilful default of the respondent that the gift deed could not be executed within the stipulated time and that he was all along ready to comply with the stipulations in the compromise agreement. The executing court rejected the contention put forward by the revision petitioner and directed him to execute the gift deed in respect of 15 cents of land to the respondent within ten days. The order passed by the executing court is under challenge in this Original Petition. _O.P.(F.C.) No.1172 of 2012_ **==> picture [14 x 9] intentionally omitted <==** 4. No oral evidence was adduced by the parties before the court below. However, Exts.A1 and A2 and B1 to B4 were marked. The court below found that the gift deed had to be drafted by the respondent herein and for that purpose it was necessary to peruse the documents by her. The revision petitioner did not make available the documents within time. It was also noticed by the court below that believing the words of the revision petitioner, the respondent had withdrawn the two MCs pending before the courts, in terms of the settlement agreement. It was also noticed that the respondent had produced the draft gift deed before court. 5. The learned counsel for the revision petitioner submitted that a time limit was fixed in the settlement agreement and the executing court cannot extend the period. He referred to the decision in **Chandran v. Musthafa** [2011(3) KLT 245]. The learned counsel for the respondent submitted that the decision of _O.P.(F.C.) No.1172 of 2012_ **==> picture [14 x 9] intentionally omitted <==** the Kerala High Court in **Thomas Job v. Thomas** [2003(3) KLT 936] taking the view that an award passed by the Lok Adalat cannot be treated as a compromise decree passed by the Civil court and the Civil Court has no jurisdiction to vary the terms of the award or extend the time agreed upon between the parties, was reversed by the Supreme Court in **Thomas v. Thomas Job** [2005(3) KLT 1042 (SC). He also relied on the decision of the Supreme Court in **State of Punjab and another v. Jalour Singh and others** [2008(2) SCC 660] and **Govindan Kutty Menon v. Shaji** [2011(4) KLT 857 (SC)]. 6. In **Chandran v. Musthafa** (supra), the parties filed a suit for specific performance and settled their disputes and a compromise decree was passed in terms of the settlement. As per the terms of settlement, the defendant had to execute the sale deed in favour of the plaintiff within 3½ months. It was stipulated that if the plaintiff was unable to get the sale deed _O.P.(F.C.) No.1172 of 2012_ **==> picture [14 x 9] intentionally omitted <==** executed within 3½ months, the plaintiff shall have the right to receive back the advance amount paid without interest. The learned Single Judge in **Chandran v. Musthafa** (supra) after referring to the judgments of the Supreme Court in **Smt.Periyakkal & others v. Smt. Dakshyani** (AIR 1983 SC 428) and **Attorney Holder, Manjith Singh v. Mangilal alias Mangtya** [1997(9) SCC 217], held thus: “The relief extended in the two decisions reported in AIR 1983 SC 428 and 1997) 9 SCC 217 are on the basis of the peculiar facts of those case which have no similarity with the case in hand. In this case, apart from fixing the time limit in the decree there is another important clause namely clause No.6. Clause No.6 recites that if the plaintiff failed to carryout the terms of payment of balance consideration within the 31/2 months agreed period, the plaintiff have the right to demand the advance amount paid by him from the defendants. Going by the said clause the time for payment of the amount within the agreed time is important and if the payment is not made within the said period the only right reserved by the plaintiff is to receive back the advance amount already paid as per the original agreement. This is not _O.P.(F.C.) No.1172 of 2012_ **==> picture [14 x 9] intentionally omitted <==** a case where a decree was passed in favour of the plaintiff decreeing the suit for specific performance and fixing the date for execution of the sale deed.” 7. The facts in **Chandran v. Musthafa** (supra) are different from the facts of the present case. In the present case, the revision petitioner has agreed to execute the gift deed on a particular date. There is no default clause in the agreement. The right of the respondent to get the gift deed executed is not taken away by any term in the settlement agreement. Therefore, we are of the view that the decision in **Chandran v. Musthafa** (supra) is of no help to the revision petitioner . 8. In **Thomas Job v. Thomas** (supra), in a suit for mandatory injunction to remove a building in the suit property and to surrender vacant possession of the site, a decree was passed by the trial court. While the appeal filed by the defendant was pending, the matter was settled between the parties in the Lok Adalat. As per the terms of the settlement, the defendant _O.P.(F.C.) No.1172 of 2012_ **==> picture [14 x 9] intentionally omitted <==** had to execute a sale deed in favour of the plaintiff after one year from the date of agreement but within two years on payment of a sum of `9,50,000/- to the defendant. It was also agreed between the parties if the sale deed was not executed within a period of two years on account of the failure of the plaintiff, the defendant shall be liable to pay a sum of `3,50,000/- to the plaintiff and the plaintiff would give up the prayer for recovery of possession with mesne profit. It was found by the High Court that the decree holder failed to comply with the terms of the agreement and to pay money to the defendant. The decree holder filed an execution petition. The executing court allowed the execution petition and directed the decree holder to deposit `9,50,000/-. The learned Single Judge set aside that order holding thus: “When the terms of compromise becomes integral part of the decree passed by the court and if a time is fixed for doing a particular act in that decree, the court gets jurisdiction to extend that time in appropriate cases. But, the Lok Adalat is not a court and does not possesses any of the powers of a civil Court _O.P.(F.C.) No.1172 of 2012_ **==> picture [14 x 9] intentionally omitted <==** conferred on it under the provisions of the Code of Civil Procedure. It is a body created under the provisions of a statute and is having only those powers conferred on it under the provisions of the Legal Services Authority Act. The Lok Adalat only certifies an agreement entered into between two parties as true and the original award itself is to be signed by the parties and the panel constituting the Lok Adalat. There is no provision which enables a party to a compromise decree to affix his signature in the decree. So, the time fixed by the parties for the performance of a particular act and reduced into writing and signed by the parties and attested by the panel of Lok Adalat stands on an entirely different footing from a compromise decree passed by a civil Court. So, the civil Court gets no jurisdiction to vary the terms of the award or extend the time agreed to between the parties to such an award.” ## 9. The Supreme Court in **Thomas v. Thomas Job** (supra) ## reversed the decision in **Thomas Job v. Thomas** (supra) and hold thus: “16. In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the courts have all the powers in relation thereto as it has in _O.P.(F.C.) No.1172 of 2012_ **==> picture [20 x 9] intentionally omitted <==** relation to a decree passed by itself. This, in our opinion includes the powers to extend time in appropriate cases. In our opinion, the award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. The effect is the same. In this connection, the High Court has failed to note that by the award what is put an end to is the appeal in the District Court and thereby the litigations between brothers forever. The view taken by the High Court, in our view, will totally defeat the object and purposes of the Legal Services Authorities Act and render the decision of the Lok Adalat meaningless.” ## 10. In **State of Punjab and another v. Jalour Singh and** **others** (supra), the Supreme Court held that where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. _O.P.(F.C.) No.1172 of 2012_ **==> picture [19 x 9] intentionally omitted <==** 11. In **Govindan Kutty Menon v. Shaji** (supra), the Supreme Court held that if a case before a Criminal court under Section 138 of the Negotiable Instruments Act is settled by the parties before the Lok Adalat, it is to be treated as a decree capable of execution by a Civil court. 12. In the case on hand, it was not necessary for the respondent to prepare the gift deed. The settlement agreement provides that the revision petitioner has to execute a gift deed in respect of 15 cents of land at the expense of the respondent. The duty to execute the gift deed is cast on the revision petitioner. There is no case that he prepared any gift deed and he was ready to execute it. On the other hand, the respondent requested the revision petitioner to hand over the necessary documents for drafting the gift deed. That shows that she was ready to comply with the terms of the settlement. There is nothing to indicate that the revision petitioner was ready to execute the gift deed. No _O.P.(F.C.) No.1172 of 2012_ **==> picture [20 x 9] intentionally omitted <==** question of extension of time arises in this case. Since the failure was on the pat of the revision petitioner to execute the gift deed, the respondent was justified in approaching the executing court for execution of the necessary document and the executing court was justified in passing the order. No grounds are made out for interference. The Original Petition (Family Court) is accordingly dismissed. No order as to costs. Sd/- **K.T. SANKARAN,** **(JUDGE)** **-** Sd/ **M. L. JOSEPH FRANCIS, (JUDGE)** dl/ // TRUE COPY //