Karnataka High Court

Rajashekar vs Smt Pankaja on 12 February, 2024

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                                                              NC: 2024:KHC:5823
                                                           RSA No.1859 of 2016




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 12TH DAY OF FEBRUARY, 2024

                                               BEFORE
                               THE HON'BLE MR JUSTICE G BASAVARAJA
                           REGULAR SECOND APPEAL NO.1859 OF 2016 (PAR)
                      BETWEEN:

                      1.    RAJASHEKAR
                            S/O LATE MAHADEVAPPA,
                            AGED ABOUT 46 YEARS,
                            R/AT KOCHARAKANAHALLI VILLAGE VARUNA HOBLI,
                            MYSURU TALUK AND DISTRICT - 570 010.

                      2.    SURESH KUMAR
                            S/O LATE MAHADEVAPPA,
                            AGED ABOUT 41 YEARS,
                            R/AT KOCHARAKANAHALLI VILLAGE
                            VARUNA HOBLI,
                            MYSURU TALUK AND DISTRICT - 570 010.

                      3.    SMT. RATHNAMMA
                            W/O LATE SHIVAKUMAR,
                            AGED ABOUT 32 YEARS,
Digitally signed by         R/AT KOCHARAKANAHALLI VILLAGE
SANDHYA S                   VARUNA HOBLI,
Location: High
Court of                    MYSURU TALUK AND DISTRICT - 570 010.
Karnataka

                      4.    SHANKARA
                            S/O LATE SHIVAKUMAR,
                            AGED ABOUT 15 YEARS,

                      5.    KUM. RATHI
                            D/O LATE SHIVAKUMAR,
                            AGED ABOUT 13 YEARS,

                            APPELLANTS 4 & 5 BEING MINORS
                            R/BY THEIR MOTHER AND NATURAL GUARDIAN
                            RATHNAMMA
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                                         NC: 2024:KHC:5823
                                    RSA No.1859 of 2016




     R/AT KOCHARAKANAHALLI VILLAGE
     VARUNA HOBLI,
     MYSURU TALUK AND DISTRICT - 570 010.

6.   SRI SOMANNA
     S/O VEERASANGAPPA @ KUNTASWAMY,
     AGED ABOUT 65 YEARS,
     R/AT KOCHARAKANAHALLI VILLAGE
     VARUNA HOBLI,
     MYSURU TALUK AND DISTRICT - 570 010.

7.   SMT. RATHNAMMA
     W/O LATE K MAHADEVAPPA,
     AGED ABOUT 55 YEARS,
     R/AT KOCHARAKANAHALLI VILLAGE
     VARUNA HOBLI,
     MYSURU TALUK AND DISTRICT - 570 010.
                                              APPELLANTS
(BY SRI. SANATH KUMARA K M., ADVOCATE)
AND:

SMT PANKAJA
W/O MURTHY,
AGED ABOUT 27 YEARS,
ANNURKERI POST, GUNDLUPET TALUK,
CHAMARAJNAGAR DISTRICT - 571 111.
                                            ...RESPONDENT
(BY SRI. P NATARAJU, ADVOCATE)
     THIS REGULAR SECOND APPEAL IS FILED UNDER
SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD
29.06.2016 PASSED IN RA.NO.8/2014 ON THE FILE OF THE III
ADDL. DISTRICT & SESSIONS JUDGE, MYSURU., DISMISSING
THE APPEAL AND CONFORMING THE ORDER DTD19.10.2013
ORDER ON IA.NO.3 & 4 PASSED IN FDP.NO.89/2012 ON THE
FILE OF THE III ADDL. SENIOR CIVIL JUDGE, AT MYSORE.,
DISSMISSING THE IA.NO.3 & 4 AND ORDERED THAT DRAW UP
FINAL DECREE AFTER THE PETITIONER PAYING THE
NECESSARY NON-JUDICIAL STAMP PAPERS.
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                                            NC: 2024:KHC:5823
                                         RSA No.1859 of 2016




     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                         JUDGMENT

Appellants 1 to 6, who are respondents in Final Decree

Proceedings No.89 of 2012 on the file of III Additional Senior

Civil Judge, Mysore, have preferred this second appeal. The

certified copy of the order dated 19th October, 2013 passed in

FDP No.89 of 2012 reveals that the petitioner Smt. Pankaja,

who is the respondent in this case, had filed a petition under

Order XX Rule 18 of the Code of Civil Procedure praying to

demarcate the schedule property as per preliminary decree

passed by Court in OS No.138 of 2009 dated 28th March, 2009

and hand over the possession of the petition schedule property.

2. In the Final Decree Proceedings, appellants 1 to 6

have filed application in IA.III under Section 151 of Code of

Civil Procedure seeking permission to deposit amount as per

the compromise decree. The trial Court has dismissed the said

application filed by appellants 1 to 6 and allowed the petition

filed under Order XX Rule 18 of Code of Civil Procedure. Being

aggrieved by the order dated 19th October, 2013 passed in

Final Decree Proceedings 89 of 2013, the present appellants

have preferred appeal in Regular Appeal No.08 of 2014 before

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the III Additional District Judge at Mysuru. The same came to

be dismissed with costs. In paragraph 8 to 10, the appellate

Court has assigned reasons for dismissal of the appeal. The

same read thus:

"Point No.2:-

8. This point regarding maintainability of the appeal has arisen due to the vehement argument of the learned counsel for the Respondent herein contending that the impugned order passed by the Trial Court in FDP No.89/2012 is not an appealable order. He has also contended that the present appeal is not maintainable for another reason, i.e. on account of the well settled position of law that a compromise decree is not appealable. On this ground, the learned counsel for the Respondent contended that the appeal should be dismissed as not maintainable. I am unable to accept these arguments of the learned counsel for the Respondent. It is the final decree passed by the Court below which is impugned in this Regular appeal. There is no doubt that a Regular Appeal under Section 96 of C.P.C. is maintainable against a Final Decree as well as against preliminary decree. Therefore, I do not find any merit in the first contention of the learned counsel for the Respondent. The second contention raised by the learned counsel for the Respondent is equally without merit. There is no doubt that a compromise decree is not appealable. However, what is impugned in this Regular Appeal is not the preliminary decree which was no doubt

NC: 2024:KHC:5823

a compromise decree. But it is the final decree which is passed on the basis of preliminary decree which is impugned in this appeal. As stated supra, an appeal can be filed not only against the preliminary decree but also against the final decree. In this case, although the preliminary decree was a compromise decree, the final decree is not a compromise decree. Therefore, the present appeal is maintainable against the said final decree. Accordingly, I answer Point No.1 in the Affirmative and hold that the present appeal is maintainable. Point No.2:- 9. While recapitulating the facts, I have stated that the appellants herein and the Respondent herein have entered into compromise petition dated 28.03.2009. It is relevant to extract the paragraph-4 of the compromise petition under Order 23 Rule 3 of C.P.C. filed by the parties which is as follows:

"4. It is agreed to and between both the parties, i.e. the Plaintiff and Defendants-1 to 6 that, if the Defendants-1 to 6 fails to pay the remaining balance amount of Rs.4,50,000/- to the Plaintiff within the aforesaid stipulated time, then the Plaintiff is at liberty to have the item No.5 of the suit property as her absolute property and in that event, the Defendants 1 to 6 have agreed toco-operate the Plaintiff to get all the revenue entries of item No.5 of the suit property to the name of the Plaintiff."

The plain reading of said compromise between the parties leaves no room for doubt that the parties categorically agreed that if the appellants herein failed to pay the balance amount of Rs.4,50,000/- within the period of 9 months, then, the Respondent herein would be at liberty to have and possess suit schedule item No.5 property as

NC: 2024:KHC:5823

her absolute property. The appellants herein in their objections in the FDP did not dispute having entered into said compromise petition. The said fact was also clearly admitted in the affidavit of appellant No.6 herein in support of I.A.No.3 in FDP No.89/2012. On the other hand, it is the contention of appellants herein that, they made all efforts to pay the balance amount within the stipulated period, but due to unavoidable circumstances, they could not raise the money. At that point of time, they requested the Respondent herein and she agreed to receive the remaining sum of Rs.4,50,000/- in installments of Rs.1,00,000/- per year. On this ground, the appellants filed the application being I.A.No.3 before the Court below praying the Court to permit them to deposit remaining balance amount of Rs.4,50,000/- with interest at 18% per annum. I am unable to accept this contention of the appellants. It is well settled position of law that, finality and solemnity attaches to compromise decrees. That is the reason why there cannot be an appeal against compromise decree. When the factum of the appellants having entered into compromise decree and the terms of the compromise decree is not disputed, the appellants cannot contend that subsequent to the compromise decree, they entered into an understanding with the Respondent herein to pay the balance amount by installments. This is particularly so when the Respondent herein stoutly denies any such subsequent understanding. The terms of the compromise decree are crystal clear. It is categorically stated that, if the appellants herein failed to pay balance amount within 9 months, then the Respondent herein would be entitled to have and possess

NC: 2024:KHC:5823

suit schedule item No.5 property as the absolute owner. The appellants herein having entered into such a compromise decree with such strict terms with their eyes wide open cannot at this stage disown the said compromise. The fact that the appellants have not paid the balance amount within the stipulated period is admitted, since the appellants themselves have filed I.A.No.3 seeking permission to deposit the balance amount. Therefore, I have no doubt in my mind that as per the compromise decree, the Respondent herein is entitled to suit schedule item No.5 property. Therefore, the Trial Court has not committed any error in passing final decree allotting suit schedule item No.5 property to the Respondent herein. Accordingly, I answer Point No.2 in the Affirmative.

Point No.3:-