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2000 DIGILAW 34 (KAR)

SURESH RAMACHANDRAPPA KILABANUR v. VIDYA

2000-01-12

H.N.TILHARI

body2000
H. N. TILHARI, J. ( 1 ) HEARD the learned counsel for the appellant Sri s. p. kulkarni and Sri ashok kalyanashetty and Sri basavaraj godachi, learned counsels for respondent. this appeal arises from the judgment and order of remand passed by the ii additional district judge, bijapur in r. a. No. 47 of 1995. The suit o. s. No. 59 of 1995, on the file of the principal civil judge was for partition and separate possession of l/5th share in the suit schedule ancestral properties. ( 2 ) THE parties to the compromise included defendant 1-suresh ramachandrappa. the compromise decree having been passed the respondent in the present appeal, namely kumari vidya, daughter of suresh-defendant 1, in the suit, under the guardianship of her mother filed the appeal. ( 3 ) THE appeal having been filed, the appellate court set aside the trial court's compromise decree and remanded the suit for trial afresh. ( 4 ) FEELING aggrieved from that Order, the parties to the suit, who had entered into compromise, that is plaintiffs and defendants have filed this appeal under order 43, Rule 1, against the remand order. ( 5 ) THE principal contention that has been advanced by Sri kalyanashetty and basavaraj godachi, the learned counsels for the respondent is that kumari vidya, had not been a party to the suit, she had no interest in the property and none could pass on her during the lifetime of suresh-defendant 1. he submitted that suresh has not filed any application for setting aside compromise decree nor any appeal from the judgment of the trial court, whereby the suit has been decided on the basis of the compromise. learned counsel contended that kumari vidya had no right to file the appeal nor could she be permitted to file the appeal from the judgment and decree of the court below as she was not a party to the suit nor has she any interest or right in the property involved in the suit and so she has no locus standi to file the appeal and appeal being not maintainable, the learned lower appellate court acted in excess of jurisdiction in allowing and entertaining the appeal as well as in setting aside the decree. this contention of the appellant's counsel has hotly been contested by Sri ashok kalyanashetty for the respondent. this contention of the appellant's counsel has hotly been contested by Sri ashok kalyanashetty for the respondent. He submitted that vidya might not be having a presaenti right, but she might and would have succeeded the rights in the property after the death of her father, her share in the property would be and would have been her father's share in the suit property, to be succeeded by her and her interest to accrue later on has been adversely affected by the compromise which the compromise was not lawful. The learned counsel contended that the permission had been granted by the lower appellate court, keeping in view the principle of law laid down in the case of Smt. Jatan kanwar golcha v M/s. Golcha properties private limited (in liquidation ). learned counsel for the respondent placed much reliance on the observations in paragraph 3 of that judgment which is at page 376, submitted that as where Supreme Court has laid down, that: "it is well-settled that a person who is "not a party in the suit, may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment". The learned counsel submitted that the compromise decree passed by the trial court would have adversely affected the property whatsoever her father would have left on his death, and her right to succeed that property which is or may be covered by compromise decree. Thus appellant's interest would be adversely affected by compromise decree. So lower appellate court below rightly allowed the present respondent-kum. Vidya to file appeal therefrom and entertained and finally rightly allowed the appeal remanded the matter of trial on merits. ( 6 ) LEARNED counsel also made reference to two other decisions which i will like to refer later on. So far as this case of jatan kanwar, supra, is concerned, it is not of any help to the respondent, in view of the special facts of the case. It will be clear from the undermentioned relevant observations:"the only question is : whether because official liquidator failed to discharge his duties properly by having a notice issued to the appellant, whose rights were directly affected by the order proposed to be made, the appellant was barred from filing the appeal. It will be clear from the undermentioned relevant observations:"the only question is : whether because official liquidator failed to discharge his duties properly by having a notice issued to the appellant, whose rights were directly affected by the order proposed to be made, the appellant was barred from filing the appeal. in our opinion, apart from Rule 139 to which reference has been made by the high court, the official liquidator as well as the learned company judge were bound by the rules -of natural Justice to issue a notice to appellant and hear her before making an order appealed against. If there was default on their part in not following the correct procedure it is wholly incomprehensible how the appellant could be deprived of her right to get her grievance redressed by filing an appeal against the order which had been made in her absence and without her knowledge. It would be a travesty of Justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well-settled that person who is not a party to the suit, who may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment". when i read these observations, i find these to clearly lay down the law to the effect, that if by an order a person's right in presaenti is going to be affected adversely and order has been passed without making her the party, principles of natural Justice will apply and such a party may apply to the court for leave to appeal and leave may be granted. In that case before the Supreme Court, the official liquidator had failed to discharge its duties, he had not issued any notice to the appellant, whose rights were likely to be directly affected by the order made by the liquidator. Their lordships opined that when there was default on the part of the liquidator as well as the company judge in not following the correct procedure, the appellant could not be deprived of her right to get grievance redressed against the Order, which had been made without notice to her, adversely affecting her right. Their lordships opined that when there was default on the part of the liquidator as well as the company judge in not following the correct procedure, the appellant could not be deprived of her right to get grievance redressed against the Order, which had been made without notice to her, adversely affecting her right. here when i apply this test, in my opinion kumari vidya had no right in the property. It is not the respondent's case that vidya had a right being in presaenti in the property, what she urges that she has a right to succeed to suresh's property, honestly is right to succeed to the property on the death of suresh. It means for the present, if by the order that is the compromise decree that has been passed between the parties, if anyone would have been affected, it may be said suresh, and according to him, if it would have been his case that compromise was unlawful or the like, he suresh could have moved an application, no doubt as he was a party to the case and his right was going to be affected. He not having done, so the daughter could not be allowed to file the appeal, particularly when it is settled law that when a decree has been passed on the basis of a lawful compromise between the parties, a party to the compromise decree cannot challenge it, excepting those case, where it is alleged by a party to compromise decree that it was affected by fraud, coercion or the like. It is well-settled that what a person cannot do directly, the same cannot be allowed to be done indirectly. ( 7 ) THE learned counsel for the respondent made further reference to the Supreme Court's decision in the case of banwari lal v Smt. Chando devi (through l. r.) and another, their lordships had been pleased to lay down the law on the subject, that:"in view of the proviso read with the explanation, a court which had entertained the petition of compromise has to examine, whether the compromise was void or voidable under the indian Contract Act. Even Rule l (m) of order 43 has been deleted under which an appeal was maintainable against an order rejecting a compromise. Even Rule l (m) of order 43 has been deleted under which an appeal was maintainable against an order rejecting a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of order 23, or an appeal under Section 96 (1) of the code, in which he can question the validity of the compromise, in view of Rule 1-a of order 43 of the code". their lordships further laid it down, that:"if the agreement or compromise itself is fraudulent then it will be void within the meaning of the explanation to the proviso to Rule 3, and as such not lawful and held, that therefore the trial court there, was justified in entertaining the application filed on behalf of the party to the suit". ( 8 ) THIS decision does not lay down the law that a stranger to the proceeding, and especially one whose rights are not at all affected, or who has no right in the property involved in the suit can challenge the compromise decree passed in a case by filing an appeal irrespective of the fact that none of his right therein exist nor is affected. There being no right or the interest, there is no question of such a strange person being affected by such a decree, that is such a person, has no right to file the appeal nor can any leave to file appeal be granted. ( 9 ) LEARNED counsel placed reliance on an another case in support of his contention, namely k. c. aswatha reddy v m. Anjanappa. In the decision again a principle has been laid down, that, it is a party to suit and compromise if he can challenge the compromise , can file a petition under proviso to Rule 3 of order 23 or an appeal and thereby, he can challenge the validity of the compromise. It further lays down that duty of court to apply judicial mind and to be satisfied about lawfulness and genuineness thereof. That decision was, again a case where the application challenging the compromise was filed by the party to the litigation and not by a stranger to suit. Their lordships referred to the earlier decision of banwari lai's case, supra, delivered by the Supreme Court. That decision was, again a case where the application challenging the compromise was filed by the party to the litigation and not by a stranger to suit. Their lordships referred to the earlier decision of banwari lai's case, supra, delivered by the Supreme Court. this is not a case where challenge has been made by a stranger to the decree, who had no interest in the property involved in the suit. This decision is also of no assistance. ( 10 ) LEARNED counsel referred to the case of yajaman mothi ajjappa v changalappa. This case is not on the point. ( 11 ) IT has to be held that kum. Vidya has no locus standi to file the appeal nor could she be granted leave to file appeal as none of her interest was involved nor is adversely affected by the compromise decree, for the reason that she did not and could not have any right in the property during the lifetime of her father. Thus, considered I am of the view and hold that the appeal was not maintainable at the instance of kum. Vidya, and i so hold i find support for my above view from the law laid by the division bench of this court in the case of baku bali ramappa padnad and another v babu alias babu rao s. Padnad and others. In paragraph 10 thereof, the division bench laid it down as follows:"it is well-settled principles that civil court has got jurisdiction to entertain the suit by virtue of Section 9 of civil procedure code which are all civil in nature. In view of Provisions of order 23, Rule 3-a appellants, not being the parties to the original suit and the said suit having been properly represented by the appellants' father, ramappa padnal it is not open to appellants to question the said compromise decree. That apart, the appellants are not being the parties in original suit No. 16 of 1991 also have no locus standi to file a miscellaneous application. it is accordingly, the learned civil judge, athani has rightly dismissed the miscellaneous application No. 8 of 1995, filed under Section 151 of Civil Procedure Code and also rejected the plaint in o. s. No. 4 of 1996". it is accordingly, the learned civil judge, athani has rightly dismissed the miscellaneous application No. 8 of 1995, filed under Section 151 of Civil Procedure Code and also rejected the plaint in o. s. No. 4 of 1996". in view of the principles of law laid down by the division bench, as well as in my opinion the appeal having been filed at the instance of kum. vidya challenging the compromise decree entered into between the parties to the suit, namely suit o. s. No. 59 of 1995, the court below had no jurisdiction, even to grant the permission, as no right or interest of kum. Vidya, d/o suresh was at all going to be affected by the judgment and compromise decree, because at the time the appeal was filed she had no interest in suit property, which was settled by compromise entered between the parties to suit. the judgment and order of remand passed by the lower appellate court is illegal and without jurisdiction. Miscellaneous second appeal is allowed. The judgment and order of the appellate court passed in r. a. No. 47 of 1995 is hereby set aside and the judgment and decree of the court below is maintained. --- *** --- .