Thankamma vs Ponnamma
2021 Latest Caselaw 15619 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
             THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
  TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
                           RSA NO. 253 OF 2021
[Against the judgment and decree dated 15.1.2021 in A.S.No.27 of 2020 of the
District Court, Ernakulam arising from the judgment and decree dated 18.3.2016 in
O.S. No. 493 of 2011 of the Munsiff Court, Muvattupuzha (now Munsiff Court,
Kothamangalam]

APPELLANTS/APPELLANTS/PLAINTIFFS NO:1,3 &6:

     1       THANKAMMA,
             AGED 65,
             W/O. LATE KUTTAPPAN, PUTHENPURAYIL HOUSE,
             THATTEKKATTUKARA, KUTTAMPUZHA VILLAGE, ERNAKULAM,
             PIN-686 681.
     2       SAJI VASAN
             AGED 43 YEARS
             S/O. KUTTAPPAN, PUTHENPURAYIL HOUSE,
             THATTEKKATTUKARA, KUTTAMUZHA VILLAGE, ERNAKULAM,
             PIN-686 681.
     3       JAYASI,
             AGED 38,
             S/O. KUTTAPPAN, PUTHENPURAYIL HOUSE,
             THATTEKKATTUKARA, KUTTAMUZHA VILLAGE, ERNAKULAM,
             PIN-686 681.
             BY ADVS.
             M.M.DEEPA
             SRI.K.C.SANTHOSHKUMAR

RESPONDENTS/RESPONDENTS/DEFENDANTS NO.1 TO 8 AND PLAINTIFFS

NO.2,4 AND 5:

1 PONNAMMA W/O. THANKAPPAN, PUTHENPURAYIL HOUSE, THATTEKKATTUKARA, KUTTAMPUZHA VILLAGE, ERNAKULAM, PIN-686 681.

2 PRASAD S/O. THANKAPPAN, PUTHENPURAYIL HOUSE, THATTEKKATTUKARA, KUTTAMPUZHA VILLAGE, ERNAKULAM, PIN-686 681.

3 PRASANNA D/O. THANKAPPAN, PUTHENPURAYIL HOUSE, THATTEKKATTUKARA, KUTTAMPUZHA VILLAGE, ERNAKULAM, PIN-686 681.

R.S.A.No. 253 of 2021

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4 PREETHA D/O. THANKAPPAN, PUTHENPURAYIL HOUSE, THATTEKKATTUKARA, KUTTAMPUZHA VILLAGE, ERNAKULAM, PIN-686 681.

5 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682 030.

6 RE SURVEY SUPERINTENDENT, MINI CIVIL STATION, ALUVA P.O., ERNAKULAM.

7 TAHSILDAR, KOTHAMANGALAM TALUK, KOTHAMANGALAM P.O., ERNAKULAM.

8 VILLAGE OFFICER KUTTAMPUZHA VILLAGE, KUTTAMPUZHA P.O., ERNAKULAM.

     9       SOUDAMINI,
             AGED 45,

D/O. KUTTAPPAN, PUTHENPURAYIL HOUSE, THATTEKKATTUKARA, KUTTAMPUZHA VILLAGE, ERNAKULAM, PIN-686 681.

     10      RENUKA,
             AGED 40,

D/O. KUTTAPPAN, PUTHENPURAYIL HOUSE, THATTEKKATTUKARA, KUTTAMPUZHA VILLAGE, ERNAKULAM, PIN-686 681.

     11      REJEEV,
             AGED 40,

S/O. KUTTAPPAN, PUTHENPURAYIL HOUSE, THATTEKKATTUKARA, KUTTAMPUZHA VILLAGE, ERNAKULAM, PIN-686 681.

BY ADVS.

PEEYUS A.KOTTAM FOR R1 TO R4 SMT.P.MAYA FOR R9 TO R11

OTHER PRESENT:

G.P. SRI. P.M. SATHISH FOR R5

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2021, THE COURT ON 27.07.2021 DELIVERED THE FOLLOWING:

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JUDGMENT 'C.R'

This appeal is directed against the judgment

and decree dated 15.1.2021 in A.S.27 of 2020 of the

District Court, Ernakulam (hereinafter referred to as

'the first appellate court') confirming the judgment

and decree dated 18.3.2016 in O.S. No. 493 of 2011

of the Munsiff's Court, Muvattupuzha (hereinafter

referred to as 'the trial court'). The appellants herein

are the appellants in A.S.No.27/2020 and the plaintiffs

No.1,3 and 6 in O.S.No.493/2011. The parties are

hereinafter referred to as 'the plaintiff' and 'the

defendants' according to their rank in the trial court

unless otherwise stated .

2. The suit was filed by the appellants and

respondents 9 to 11 praying for a mandatory

injunction directing the survey authorities to correct R.S.A.No. 253 of 2021

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resurvey records in respect of Sy.No.36 of Block 3 in

Kuttampuzha Village and seeking a declaration with

regard to the title and possession over the plaint 'B'

and 'C' schedule properties, fixation of boundaries and

consequential permanent prohibitory injunction.

3. The case was referred for mediation and

was settled between the parties. Consequently,

mediation agreement under Section 89 of the Code of

Civil Procedure (hereinafter referred to as 'the Code')

read with Rules 24 and 25 of the Civil Procedure

(Mediation) Rules, 2005 signed by the parties was

returned to the court. The trial court decreed the suit

in terms of the mediation agreement. The mediation

agreement was formed as part of the decree. The

plaintiffs 1,3 and 6, who are the appellants in this

appeal, filed first appeal before the first appellate R.S.A.No. 253 of 2021

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court with an Interlocutory Application No.1/2020 in

A.S.No.27/2020 for condoning the delay of 1417 days.

By order dated 15.1.2021, the first appellate court

dismissed the application for condonation of delay.

Consequently, the appeal was also dismissed.

4. The order passed by the first appellate

court deciding the appeal results in merger of the

judgment of the trial court with that of the appellate

court. A perusal of the operative part of the judgment

would reveal that the judgment passed by the trial

court stands superseded by the decree now passed by

the first appellate court. The dismissal of an appeal

on the ground of delay in filing the same has the

effect of confirming the decree appealed against. It

is a fact that a compromise decree passed by the trial

court was challenged before the first appellate court. R.S.A.No. 253 of 2021

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5. An interesting question as to whether a

first appeal would lie against the impugned judgment

and decree of the trial court or same is barred by

Section 96(3) of the Code arises for consideration in

this Regular Second Appeal filed before this Court

invoking its jurisdiction under Section 100 of the

Code. Although there were 8 defendants in the suit,

the mediation agreement was executed between the

plaintiffs and the defendants 1 to 4. The terms of the

mediation agreement (translated version) are as

follows:-

"1. Of the property having an extent of 57.330 cents comprised in Resurvey 36/5, Kuttampuzha Village, obtained by Thankappan who is the predecessor of 1st to 4th defendants in O.S.No.493/11 as per Settlement Deed No: 1960/85 in Sub Registry, Devikulam, and after his death came in possession of 1 st to 4th defendants in the same case, the defendants have agreed to transfer the 12.500 cents of property towards the north boundary lying East West and is shown in the plan attached herewith dated 07.03.2016 R.S.A.No. 253 of 2021

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to the plaintiffs in this case, and accordingly, the said 12.500 cents of property was measured, plan prepared and handed over the possession to the plaintiffs. Hereinafter, 1st to 4th defendants shall have no right over the 12.500 cents of property so transferred to the plaintiffs, and based on the compromise decree in this case the defendants shall have the right to obtain the property in their possession for full enjoyment by paying tax. Both parties do hereby agree that they will not engage each other in any activities interfering with the ownership and possession of the 12.500 cents of property transferred to the plaintiffs as above and of the remaining property, excluding the said 12.500 cents of property, having an extent of 44.830 cents comprised in Resurvey 36/5 which is in possession of 1st to 4th defendants.

2. Out of the landed property having an extent of 50.500 cents which is still comprised in Resurvey 36/6 in the name of Maniyan and the said Maniyan who is the father of Thankappan, the predecessor of defendants 1 to 4 and also the father of Kuttappan predecessor of plaintiffs in OS.No.493/11 holding a pattayam, the right over the one third part (1/3) of the said landed property which was jointly derived by the plaintiffs by way of succession is relinquished by the plaintiffs on this day and the same is transferred in favour of the said defendants. Hereinafter, the plaintiffs in O.S.No.493/11 shall not have any kind of right or claim in respect of 50.500 cents properly which is in the name of said Maniyan and on the basis of the compromise decree in this case, defendants 1 to 4 in OS.No.493/11 shall have the absolute right of enjoyment and possession of the said property along R.S.A.No. 253 of 2021

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with the remaining legal heirs of Maniyan by remitting taxes.

3. Both parties shall have the right of executing Sale Deed or Registered documents for transferring their rights on the property as aforementioned and for such purchase on registration, a time period of 6 months from today is stipulated. Deed of the said 12.500 cents of property shall be executed at the expense of plaintiffs in O.S.No.493/11 and the Deed of said 50.500 cents shall be executed at the expense of defendants 1 to 4 therein. In any circumstances, either parties commits an omission in executing the document within the said stipulated 6 months, both parties shall have a right of executing the Deed as aforementioned, through the Court.

4. Survey Plan produced as per I.A.No.715/12 and the Plan prepared on 07.03.16 demarcating the boundaries of the above mentioned 12.500 cents of land shall form part of this agreement.

5. Both parties do hereby agree to settle O.S.No.385/09 and O.S.No.493/11 according to above mentioned stipulations and consent to be decreed as per the said conditions of compromise. The defendants do hereby agree that they have no rights over the property derived by the plaintiffs in O.S.No.493/11 which is comprised in Resurvey 36/8."

The above compromise was recorded by the trial court R.S.A.No. 253 of 2021

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and a compromise decree was passed. A Division

Bench of this Court, in the decision reported in Teena

M.Ansari v. Rinoj Eappen [2019 (3) KLT 1114], has

upheld a mediation agreement entered into between

the parties through mediation process in paragraph 12

of the judgment as under:-

"12. After entering into a settlement through the process of mediation and after the Court as well as the parties have acted upon the settlement, one of the parties cannot be permitted to unilaterally withdraw from the same. Granting permission for withdrawing from the settlement agreement, which was voluntarily signed by the parties, would destroy the sanctity of the whole process of mediation. The settlement agreement, having been signed and acted upon, is binding on the parties. A settlement agreement entered into between the parties through mediation conducted at the High Court Mediation Centre, after getting the imprimatur of the Court, has got a certain solemnity attached to it."

6. In the case at hand, the plaintiffs

admitted that they were signatories to the mediation

agreement. They contended that they had no

knowledge with regard to the settlement and the decree R.S.A.No. 253 of 2021

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passed on the basis of the so-called settlement. They

also contended that the decree was obtained by fraud.

However, the particulars with dates and items, if

necessary, as contemplated under Order VI Rule 4 of

the Code, are conspicuously absent in the pleading.

7. The prohibition under Section 96(3) of

the code would remain limited to the cases where the

parties after complying with the procedure prescribed

under Order XXIII Rule 3 of the Code called upon the trial

court to pass a decree in a particular manner to which

they had agreed to and the court acts accordingly. It

reads thus:-

"96.Appeal from original decree:-

(1) xxx xxx

(2) xxx xxx

(3) No appeal shall lie from a decree passed by the Court with the consent of parties."

R.S.A.No. 253 of 2021

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8. However, in a case where the parties

dispute being signatories to the compromise or the

compromise decree is challenged on the ground of

fraud, undue influence or misrepresentation, the bar

stipulated under Section 96(3) would not come in the

way of filing an appeal. As stated earlier, the party

pleadings fraud must plead the precise nature of the

fraud exercised as contemplated under Order VI Rule

4 of the Code. There are no specific pleadings in

this regard. Further, the case was settled by way of

mediation in accordance with rules. The mediation

agreement was perused by the trial court and later,

accepted in exercise of judicial function, which is

presumed to be done correctly. In view of the fact

that the case was settled by mediation and the

compromise was accepted and recorded by the trial R.S.A.No. 253 of 2021

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court, an initial presumption is available in this case

that the decree was passed in accordance with law.

9. When Section 96(3) of the Code bars an

appeal against the decree passed with the consent of

parties, it goes without saying that such decree is

valid and binding on the parties unless set aside in a

process known to law. One such remedy available was

filing an appeal under Order XLIII Rule 1(m). Under

Order XLIII Rule 1(m), an order recording or refusing

to record an agreement or satisfaction could be

directly challenged by filing an appeal even before the

final judgment is passed in the suit. At the same

time, in cases where the decree was passed by the

court with the consent of parties, no appeal would lie

in view of the prohibition contained under Section

96(3) of the Code.

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10. After the code was amended by Act

No.104 of 1976, clause (m) of Rule 1 of Order XLIII was

omitted, meaning thereby that an order recording or

refusing to record an agreement, compromise or

satisfaction is no more appealable. However, by the very

same amendment, Rule 1A was inserted in Order XLIII.

Sub-rule 2 thereof, which is relevant in the case at hand,

is as under:-

"1A. Right to challenge non-appealable orders in appeal against decrees.--(1)Where any order is made under this Code against a party and there upon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

(2) In an appeal against the decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded."

11. Certain amendments were also made

under Order XXIII Rule 3, which contained provision

relating to withdrawal and adjustment of suits by the

amending Act of 1976. It has been made mandatory R.S.A.No. 253 of 2021

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that the compromise should be in writing and signed

by the parties. Order XXIII Rule 3 and Rule 3A as

amended by Act 104 of 1976 are as under:-

"3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:] [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.--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.]

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."

R.S.A.No. 253 of 2021

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12. In Pushpa Devi Bhagat (DEAD)

THROUGH LR.SADHNA RAI (SMT) v. Rajinder

Singh and others [(2006)5 SCC 566], the Supreme

Court considered Rule 3 and Rule 3A of Order XXIII

and held as follows:-

"17.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) of 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 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 R.S.A.No. 253 of 2021

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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. When the amending Act introduced a

proviso along with an Explanation to Rule 3 of Order

XXIII saying that where it is alleged by the one party

and denied by the other that an adjustment or

satisfaction has been arrived at, "the Court shall

decide the question", the Court before which a petition

of compromise is filed and which has recorded such

compromise, has to decide the question whether an

adjustment or satisfaction had been arrived at on the

basis of any lawful agreement'(See Banwari Lal v.

Chando Devi(SMT)(THROUGH LRs.) and

another[(1993)1 SCC 581].

R.S.A.No. 253 of 2021

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14. More importantly, none of the parties

except the appellants challenged the consent decree

passed by the trial court before the first appellate

court though the decree was passed by the trial court

as early as on 18.3.2016. The appellants waited for

1417 days and filed an appeal before the first

appellate court. All the other parties except the

appellants are not supporting the claim of the

appellants. Going by the terms of the decree, it

contain reciprocal obligations towards each other.

Further, the terms of the compromise have been

carefully drafted to resolve the dispute between the

parties finally. In view of the fact that the settlement

agreement entered into between the parties through

mediation conducted in accordance with rules and

later recorded by the court by way of judicial process, R.S.A.No. 253 of 2021

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has got a certain solemnity attached to the mediation

process, as held in Teena's case (supra). Hence, the

allegation of fraud as against the mediation process is

clearly unsustainable and an appeal challenging the

compromise decree passed by a competent court of

jurisdiction by way of mediation process in accordance

with rules, is not maintainable under Section 96(3) of

the Code. Assuming for arguments sake, even if the

delay was condoned by the first appellate court, still

an appeal challenging a compromise decree duly

obtained by way of mediation process was

unsustainable before the first appellate court in view

of Section 96(3) of the Code.

15. This R.S.A. is therefore liable to be

dismissed in limine as not maintainable without

prejudice to the rights and liberties of the appellants, R.S.A.No. 253 of 2021

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if any, in accordance with law.

In the result, this R.S.A. is dismissed in

limine. There will be no order as to costs. Pending

applications, if any, shall stand closed.

Sd/-

N.ANIL KUMAR, JUDGE MBS/