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2018 DIGILAW 256 (KER)

Mohanlal v. State of Kerala

2018-03-16

A.M.SHAFFIQUE, K.P. JYOTHINDRANATH, P.SOMARAJAN

body2018
ORDER : A.M. Shaffique, J. By reference order dated 3.10.2017, a Division Bench of this Court had doubted the correctness of decisions in L.A.A. Nos. 251 of 2011, 645 of 2012 and 919 of 2009. 2. The short facts arising in the case are as under : The appeal is filed against the judgment and decree dated 27.05.2010 in L.A.R.No.22 of 2008. The appeal is filed with a petition to condone the delay of 2282 days in filing the appeal. 3. When the appeal came up for admission it was pointed out by the learned Government Pleader that the entire matter has been settled out of court in Lok Adalat Case No.1532 of 2011 and therefore the appeal is not maintainable. The Division Bench which heard the appeal observed that, since the amount decreed has been settled in full and final settlement towards the claim in the land acquisition, the appeal and the petition to condone delay are not maintainable, especially in the light of S.96(3) of the Code of Civil Procedure. The Division Bench also doubted the earlier view of this Court in L.A.A. Nos. 251 of 2011, 645 of 2012 and 919 of 2009. 4. Heard the learned Senior Counsel appearing for the appellant and learned Additional Advocate General, Sri. Renjith Thamban. 5. The learned Additional Advocate General submitted that, in the instant case, after a decree has been passed, the claimant approached the Lok Adalath and settled the reference case in full and final settlement. In such an event, it shall not be open for the claimant to re-agitate the claim by filing an appeal. On the other hand, the learned Senior Counsel, Sri. T. Krishnanunni, appearing for the appellant submitted that, the appeal being a statutory right, it cannot be said that the appeal cannot be entertained. Whether it is full and final settlement of the award amount and whether the appellant had relinquished his right to prefer the appeal is a matter to be considered in the appeal. In so far as the settlement is with reference to the decree passed in the case, nothing prevents the decree holder to prefer the statutory appeal which has been held so, by different Division Benches. 6. In so far as the settlement is with reference to the decree passed in the case, nothing prevents the decree holder to prefer the statutory appeal which has been held so, by different Division Benches. 6. The three appeals referred by the Division Bench in the reference order were the cases in which execution petitions were pending before the execution court for recovering the amount decreed, which were referred to the Adalat and a settlement was arrived at before the Adalat. This Court held that, settling a case before the Adalat in so far as the decree amount is concerned, does not preclude the decree holder from preferring a statutory appeal. 7. First point to be considered is whether S.96(3) of C.P.C. bars the filing of appeal. S.96(3) of the C.P.C. reads as under : “(3) No appeal shall lie from a decree passed by the Court with the consent of parties.” The position of law has been well stated in Katikara Chintamani Dora v. Guntreddi Annamanaidu ( (1974) 1 SCC 567 ) at paragraph 62, which reads as under : “62. Be that as it may, the bar to an appeal against a consent decree, in sub-section (3) of Section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forego their right of appeal by any lawful agreement or compromise, or even by conduct. Therefore, as soon as the parties made the agreement to abide by the determination in the appeal (A.S.668) and induced the Court to pass a decree in terms of that agreement, the principle of estoppel underlying Section 96(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties. And, it was as effective in creating an estoppel between the parties as a judgment on contest. Thus, the determination in A.S.668 — that Kadakalla was not an “estate” — became as much binding on the respondents, as on the parties in that appeal.” In fact the decree dated 27.5.2010 is not one passed by the consent of the parties and therefore S.96(3) will not apply to facts of the present case. In such circumstances, a statutory appeal under S.54 of the Land Acquisition Act, 1894, is maintainable. 8. In such circumstances, a statutory appeal under S.54 of the Land Acquisition Act, 1894, is maintainable. 8. Therefore, the question would be whether, on an award being passed by the Lok Adalat on 2.11.2011, there is a settlement of the entire lis, which precludes claimant from filing the appeal. Apparently, the matter was referred to Lok Adalat. We do not know under what circumstances the matter has been referred (as no matter was pending before the reference court and a decree was already passed). It seems to be a suo moto reference from the court. The words ‘full and final settlement of the claim’ as referred in the order can only mean full and final settlement of the decree amount, as by the time a decree had already been passed in the case. 9. Under S.21 of the Legal Services Authorities Act, 1987 (for short ‘the Act’), when an award is passed by the Lok Adalat it shall be deemed to be a decree and no appeal will lie. We do not think that the order dated 2.11.2011 in Lok Adalat Case No.1532 of 2011 can be treated as an executable decree, especially in the light of the wording that “if the amount is not deposited on or before 17.11.2011, the award shall stand cancelled and the claimant will be at liberty to proceed with the case in accordance with the law”. The words “to proceed in accordance with law” meant that the claimant’s right to file an execution petition was left open. The Government does not have a case that they have agreed to pay any amount in excess of the decree passed by the court below. Therefore this award of the Adalath cannot be treated as a settlement in full and final settlement of the claim; whereas it can only be treated as full and final settlement of the decree amount. As such, a statutory right to prefer an appeal will not be lost in the present case. 10. As far as the correctness of the judgment in the reference order is concerned, it lays down the correct proposition of law. Once a decree has been passed by a civil court, the aggrieved party has a right of appeal, which right can be relinquished only in accordance with the procedure prescribed. 10. As far as the correctness of the judgment in the reference order is concerned, it lays down the correct proposition of law. Once a decree has been passed by a civil court, the aggrieved party has a right of appeal, which right can be relinquished only in accordance with the procedure prescribed. It is always open for a decree holder to seek for execution of the decree and also to prefer an appeal against the decree for the disallowed portion of the claim. The right to prefer an appeal will be lost only if a decree has been passed by the court by the consent of parties as contemplated under S.96(3) of the C.P.C. As far as S.21 of the Act is concerned, we don’t think that the order now passed amounts to a decree in terms of the said section. The Lok Adalat has only taken note of the fact that the payment will be made on or before 17.11.2011. The only aspect remaining is the word “claim” used in the award. But in so far as the said “award” cannot be treated as an executable decree, it cannot take the character of an “award” passed under the Act. 11. The matter is more clear when we refer to Ss.19 and 20 of the Act. As per S.19(5) of the Act, a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of - (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised. In fact, this case does not come under both these provisions as it is not a pending matter since a decree had already been passed and it is not a pre-litigation matter. For argument sake, if we assume that the decree holder could have filed an execution petition and it has not been filed and it is referred to the Lok Adalat, at best it will only come under S.19(5)(ii) in which event S.20(2) applies which reads as under : “20(2). For argument sake, if we assume that the decree holder could have filed an execution petition and it has not been filed and it is referred to the Lok Adalat, at best it will only come under S.19(5)(ii) in which event S.20(2) applies which reads as under : “20(2). Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organising the Lok Adalat under sub-s.(1) of S.19 may, on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) of the Section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party.” 12. Sub-section (3) of S.20 of the Act indicates that when any such case is referred, the Lok Adalat shall proceed to dispose of the case and arrive at compromise or settlement between parties. It could as well be seen that there was no dispute for the Lok Adalat to determine in this case and probably it also felt that no award could be passed, and therefore, it seems that an order was passed in terms of S.20(6) which reads as under: “20(6). Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in sub-s.(2), that Lok Adalat shall advice the parties to seek remedy in a court.” 13. At any rate, even assuming that a wrong procedure was adopted by the Court to refer the matter, the purpose of referring was only relating to payment of the decree amount and nothing more. In so far as the appellant has not expressed any intention to waive the right of preferring the appeal while the award was passed, no such intention can be derived from the said award. 14. In the result, we are of the view that the appeal is maintainable and is to be considered on its merits. In the absence of any clear statement in the award passed, by which a party to the lis had relinquished the right to prefer an appeal, the appeal is certainly maintainable. 14. In the result, we are of the view that the appeal is maintainable and is to be considered on its merits. In the absence of any clear statement in the award passed, by which a party to the lis had relinquished the right to prefer an appeal, the appeal is certainly maintainable. We uphold the view expressed in LA.A. Nos.251 of 2011, 645 of 2012 and 919 of 2009. Registry shall place the matter before the appropriate Court for being heard.