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2012 DIGILAW 294 (KER)

Joy Francis v. Joseph Netto

2012-03-12

S.S.SATHEESACHANDRAN

body2012
Judgment : 1. Original petition is filed seeking the following reliefs: (i) To call for the entire records of E.A.No.347/2011 in E.P.No.189/2011 in O.S.No.125/2006 on the file of the Munsiff’s Court, Kollam and set aside Ext.P7 order and allow E.A.No.347/2011 in E.P.No.189/2011 in O.S.No.125/2006 on the file of the Munsiff’s Court, Kollam. (ii) To call for the entire records of O.S.No.700/2011 on the file of the Munsiff’s Court, Kollam and direct the court below to consider the case as expeditiously as possible. (iii) any other direction or order in the facts and circumstances presented in the case circumstances of the case. 2. Petitioners are the additional judgment debtors 3 and 4 in E.P.No.189/2011 in O.S.No.125/2006 on the file of the Principal Munsiff’s Court, Kollam. A compromise decree passed in the suit is being executed in the aforesaid execution petition by the 1st respondent/decree holder. Respondents 2 and 3 were the defendants in the suit. The 2nd respondent/first defendant has assigned the rights over her property plaint ‘B’ schedule involved under the compromise decree in favour of the petitioners and as such they have been brought in the execution proceedings as additional judgment debtors. Petitioners have a case that they had an agreement of sale over such property even before the compromise decree was entered into by the plaintiff and defendants in the suit on a reference made to the Lok Adalat. The petitioners obtained agreement of sale, according to them, after the commencement of the lis, but a few days before the compromise entered by the parties to the suit. Impugning the compromise decree based on the settlement entered by the plaintiff and defendants in the suit as vitiated by collusion and fraud, the petitioners/assignees have filed a suit as O.S.No.700/2011 before the Munsiff’s Court, Kollam for setting aside such decree. Pendency of such suit was canvassed to move an application under Order XXI Rule 29 of the Code of Civil Procedure (for short ‘the Code’), for stay of the execution proceedings arising from the compromise decree. The learned Principal Munsiff has dismissed that application vide Ext.P7 order, which is challenged in this original petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 3. The learned Principal Munsiff has dismissed that application vide Ext.P7 order, which is challenged in this original petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Brief facts leading to the compromise decree, which is put in execution, can be stated thus: Suit was one for a declaration of the plaintiff’s right of easement by prescription over a pathway and for injunction. The defendants in the suit are two sisters of the plaintiff, and all of them are the children of the original acquirer of the properties involved in the suit, an extent of 12 cents. That acquirer had settled the properties in favour of her children providing A schedule having an extent of 3 cents on the extreme southern portion to the plaintiff, and adjacent to it 3 cents to the 2nd defendant, and the rest, western 6 cents to the 1st defendant, described as ‘B’ schedule. Suit was files by the plaintiff to declare her right of prescriptive easement over ‘C’ schedule pathway described as having four feet wide, passing through B schedule property, for an injunction restraining the defendants from extending the compound wall on the western side of B schedule property, from interfering with the possession and enjoyment of the plaintiff and also from causing any obstruction in taking water from a well situate partly in ‘B’ schedule with the rest in an adjoining property described as ‘D’ schedule, or, from damaging the water pump installed in a kennel situate in ‘B’ schedule and water tank placed on the roof of that kennel, and from causing obstruction to and drawing of water through water pipes from such water tank to A schedule. 4. Resisting the suit claim, the defendants raised a counter claim for removal of the kennel, water pump and water tank situate in B schedule property passing a decree of mandatory injunction directing the plaintiff to do so. Suit was partly decreed granting a declaration of easement over plaint C schedule pathway and also an injunction restraining the defendants from effecting any construction over such pathway or causing any disturbance to the plaintiff in enjoying such pathway. Counter claim was also partly allowed directing the plaintiff to remove the water tank and water pump installed in the kennel in plaint ‘B’ schedule property. Counter claim was also partly allowed directing the plaintiff to remove the water tank and water pump installed in the kennel in plaint ‘B’ schedule property. Ext.P1 is the copy of the judgment rendered in the suit granting decrees as above to the plaintiffs and defendant. 5. The plaintiff preferred an appeal to the extent aggrieved by the non-granting of the reliefs canvassed in her suit and also over the decreeing of the counter claim. Pending appeal, the parties entered into a compromise. On reference to the Lok Adalat, parties reached a settlement on the terms and conditions agreed upon as per the compromise. Ext.P12 is the compromise petition files by them. Ext.P13 is the award passed by the Lok Adalat, disposing of the appeal in terms of the compromise petition. That award is dated 13.03.2010. 6. Compromise terms, among others, directed the defendants to demolish the existing western boundary wall in B Schedule put up encroaching upon ‘C’ schedule way and construction of a new boundary wall excluding such pathway at their expense. It also provided for closing of the windows, ventilators and the openings situate in the building B schedule property close to ‘C’ schedule pathway with other conditions restraining the defendants from obstructing and interfering with the enjoyment of ‘C’ schedule pathway by the plaintiff, and also over the pipes laid for drawing of water from the well partly situate in B schedule. Compromise agreement also provided for withdrawal of the appeal preferred by the defendants, who too had challenged the decree granted in favour of the plaintiff numbered as A.S.No.22/10. Under the terms of compromise the plaintiff also agreed to remove the water pump and water tank placed in the kennel in ‘B’ schedule, and install them in her property ‘A’ schedule. 7. Subsequent to the compromise decree passed, the terms thereof were fulfilled by the parties, according to the 1st respondent/decree holder. Under the terms of compromise the plaintiff also agreed to remove the water pump and water tank placed in the kennel in ‘B’ schedule, and install them in her property ‘A’ schedule. 7. Subsequent to the compromise decree passed, the terms thereof were fulfilled by the parties, according to the 1st respondent/decree holder. However, later, the additional judgment debtors 3 and 4, the present petitioners, after getting assignment of plaint B schedule property, flouted the terms of the compromise decree removing the compound wall which had been constructed on the side of the pathway in terms of compromise and they forcibly opened the closed portions of the windows and ventilators removed, installed new windows and structures there and threw the debris thereof into the pathway, was the case of the plaintiff for execution of the compromise decree filing the execution petition. In such proceedings resisting the execution, the additional judgment debtors 3 and 4, among other contentions, impeached the validity of the compromise decree contending that it is vitiated by fraud, and it has been entered collusively by the plaintiff and 1st defendant after the agreement of sale over B schedule property was entered by them with by the 1st defendant in the suit. The additional judgment debtors have filed a suit as O.S.No.700/11 to set aside the compromise decree on the aforesaid ground was also raised as another objection to resist the execution. An application was moved by them to stay the execution of the decree till a decision is entered into in the aforesaid suit. The learned Munsiff has dismissed that petition for stay vide Ext.P7 order, which is challenged in this original petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 8. After hearing the submissions made by the learned counsel on both sides, to my query to the counsel for the petitioners over the bar of suit to impeach the compromise decree as under Order XXIII Rule 3-A of the Code, and also the sustainability of the case put forward to resist the execution by the petitioners/additional judgment debtors 3 and 4 for stay, on the basis of the suit instituted by them, the learned counsel submitted that the petitioners not being parties to the suit or the compromise, the aforesaid bar is inapplicable to them. I cannot agree. 9. I cannot agree. 9. Order XXIII Rule 3-A reads thus: “No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.” That bar is not applicable to the petitioners/additional judgment debtors 3 and 4, is the submission of the counsel on the premise that even before the compromise decree an agreement of sale over ‘B’ schedule was entered by them with the 1st defendant, and, that they are not parties to the suit or the decree. Admittedly, these petitioners are assignees who claim right over B schedule property on the basis of the transfer effected by the 1st defendant in the suit after commencement of the lis. Agreement of sale in their favour according to the petitioners, was on 8.1.2010. Award of the Lok Adalat is dated 13.3.2010. Ext.P2 sale deed over ‘B’ schedule property was executed in favour of the petitioners by the 1st defendant on 19.3.2010. Are the petitioners parties to the suit and are they bound by the decree has to be examined with reference to the doctrine of lis pendens. Explanation provided to Section 52 of the Transfer of Property Act would clearly demonstrate that the applicability of such doctrine, from the commencement of the lis “it shall continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution of such decree.” 10. So, it is puerile and in fact futile to contend that the petitioners who, admittedly, took assignment of ‘B’ schedule involved in the suit after commencement of the lis are not parties to the suit and not bound by the decree, and that the bar under Order XXIII Rule 3-A of the Code is inapplicable to them. Suit has resulted in a consent decree is no bar to the application of the doctrine of lis pendens. The transferee is as much bound by the decree, as if he was a party to the suit. Suit has resulted in a consent decree is no bar to the application of the doctrine of lis pendens. The transferee is as much bound by the decree, as if he was a party to the suit. As a transferee over the immovable property covered by the lis in which any right to such property is directly and specifically in question, he puts himself in privity with the suit, and cannot be treated as a stranger (see Amarnath v. Deputy Director, Consolidation (AIR 1985 All.163). A transferee pendente lite is a representative in interest of the transferor who is a party to the suit, and as such is a person bound by the decree even if he was not made a party to the suit. So much so, the argument canvassed that petitioners are not parties to the suit or consent decree and therefore the bar under Rule 3-A of Order XXIII of the Code is inapplicable to them is devoid of any merit. 11. The only course open to impeach the compromise decree 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. In considering the ambit and scope of the amended Rule 3 of Order XXIII in relation to the bar under Rule 3-A, the Apex Court has in Banwari Lal v. Smt. Chando Devi (AIR 1993 SC 1139) held thus: “Rule 3 of O.23 which contained the procedure regarding compromise of the suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree. Not only in Rule 3 some special requirements were introduced before a compromise is recorded by the Court including that the lawful agreement or a compromise must be in writing and singed by the parties, a proviso with an explanation was also added which is as follows:- “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 decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation. 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.” 7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voildable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said Rule. Having introduced the proviso along with the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by R.3A in respect of institution of a separate suit for setting aside a decree on basis of a compromise saying:- “3A. Bar to suit. – No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.” 12. The above position has been reiterated in Pushpa Devi Bhagat v. Rajinder Singh and Ors. (AIR 2006 SC 2628), wherein it has been stated thus: “The position that emerges from the amended provisions of Order 23, can be summed up thus: (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1, Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23. Therefore, the only remedy available to a party to a consent 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 was no compromise. In that event, the court which recorded the compromise will itself 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 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.” 13. Interpreting Rule 3 of Order XXIII of the Code, the Apex Court in unequivocal terms has emphatically made it clear that the only remedy available to a party to a consent decree to avoid such consent decree is to approach the Court which recorded the compromise and made the decree in terms of it, and to establish that there was no compromise, whatever be the ground available to him to impeach such decree. If any such challenge is made, it is for the court which passed the decree to consider and decide such question whether there is a valid compromise or not. When that be the case, the petitioners, who are assignees of B schedule property from the defendants, and thus bound by the decree, if they have got any case to impeach the decree have to approach the court which passed the decree to determine the validity of the compromise. The execution court is bound to execute the decree as it is and it cannot entertain a challenge impeaching the validity of the compromise decree by a party bound by such decree. Petitioners have filed a suit impeaching such decree, when no such suit is entertainable in view of the bar under Order XXIII Rule 3-A of the Code. As they are shown to be bound by the decree, the application moved by them for stay of the execution proceedings was not at all entertainable. Petitioners have filed a suit impeaching such decree, when no such suit is entertainable in view of the bar under Order XXIII Rule 3-A of the Code. As they are shown to be bound by the decree, the application moved by them for stay of the execution proceedings was not at all entertainable. The application for stay of execution at their instance was not entertainable, and Ext.P7 order dismissing such application by the learned Munsiff, though for different reasons as well, as stated above, is only to be upheld. Original petition is dismissed.