Kerala High Court
Dr. Drisya D.T vs Dr. Kiran on 20 January, 2023
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
MAT.APPEAL NO. 810 OF 2022
AGAINST THE ORDER DATED 03.11.2022 IN I.A.NO.5 OF 2020 IN
O.P.NO.780 OF 2021 ON THE FILES OF THE FAMILY COURT,
THIRUVANANTHAPURAM
APPELLANTS:
1 DR. DRISYA D.T.,
AGED 37 YEARS, D/O. THANKAMANY, RESIDING AT A4,
TC. NO. 4/1870(4), A4 (4) DEEPAM, PANDITS
COLONY, KOWDIAR P.O., THIRUVANANTHAPURAM,
PIN - 695003.
2 DEEPSHIKA D.K.
AGED 8 YEARS, D/O. DR.KIRAN, REP. BY THE 1ST
APPELLANT DR. DRISYA, WHO IS THE MOTHER AND
GUARDIAN, PIN - 695003.
3 DEEBJITH D.K.
AGED 5 YEARS, S/O. DR. KIRAN, REP. BY THE 1ST
APPELLANT DR. DRISYA, WHO IS THE MOTHER AND
GUARDIAN, PIN - 695003.
BY ADVS.
M.R.DHANIL
SENITTA P. JOJO
2
Mat.Appeal No.810 of 2022
RESPONDENTS:
1 DR. KIRAN
AGED 40 YEARS, S/O. DR. THANKAPPAN, RESIDING AT
SAMUAL GARDEN, ARCHANA NAGAR, E34, NEW RAYS (TC
6/2331), PONGUMOODU, ULLOOR VILLAGE, MEDICAL
COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695011.
2 DR. K.R. THANKAPPAN,
AGED 73 YEARS, S/O. SAKKAI, RESIDING AT SAMUAL
GARDEN, ARCHANA NAGAR, E34, NEW RAYS (TC
6/2331), PONGUMOODU, ULLOOR VILLAGE, MEDICAL
COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695011.
3 VALSA P.T.,
AGED 71 YEARS, W/O. DR. THANKAPPAN, SAMUAL
GARDEN, ARCHANA NAGAR, E34, NEW RAYS (TC
6/2331), PONGUMOODU, ULLOOR VILLAGE, MEDICAL
COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695011.
BY ADVS.
S. MAJIDA S
AJIKHAN.M
MUHAMMED SUHAIL K.H.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 03.01.2023, THE COURT ON 20.01.2023 DELIVERED
THE FOLLOWING:
3
Mat.Appeal No.810 of 2022
"C.R."
JUDGMENT
P.G.Ajithkumar, J.
The order dated 03.11.2022 of the Family Court,
Thiruvananthapuram in I.A.No.5 of 2020 in O.P.No.780 of
2021 is under challenge in this appeal filed under Section
19(1) of the Family Courts Act, 1984.
2. I.A.No.5 of 2022 was filed by the appellants, who are
the wife and children of the 1st respondent, seeking review of the
judgment dated 01.07.2022 in O.P.No.780 of 2021. As per the
said judgment, O.P.No.780 of 2021 was allowed in terms of the
compromise entered into between the parties. The Family Court,
after hearing both sides, dismissed I.A.No.5 of 2022.
3. This appeal was admitted on 21.11.2022. The
respondents entered appearance through their learned
counsel.
4. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondents.
Mat.Appeal No.810 of 2022
5. O.P.No.780 of 2021 was filed by the appellants
seeking a decree setting aside gift deed No.914 of 2019 of
Sub Registry Office, Pattom. Apart from the said case, several
other litigations between the parties are pending. The 1st
respondent filed O.P.No.223 of 2018 for a decree of
dissolution of marriage. He also filed O.P.No.224 of 2018 for
declaring him the guardian of the children and to get their
permanent custody. The appellants fled M.C.No.160 of 2018
claiming maintenance. Two more cases, namely, O.P.No.753 of
2021 and O.P.No.3004 of 2021 between them are also
pending consideration of the Family Court. It was in such
circumstances, a compromise, Ext.P1 was entered into and
signed by the 1st appellant and the respondents, which was
filed before the Family Court. The Family Court as per the
judgment dated 01.07.2022 recorded that compromise and
allowed O.P.No.780 of 2021. The judgment reads:-
"Petition for setting aside the gift deed No.914 of 2019
and for temporary injunction.
Advanced. Both parties and their counsels are
present. Matter along with all other connected matters
Mat.Appeal No.810 of 2022
are settled in the counselling. Compromise filed. OP
allowed in terms of compromise. The compromise
shall form part of the decree. The attachment is lifted.
Communicate the order."
6. The appellants have filed I.A.No.5 of 2022 in
O.P.No.780 of 2021 seeking to review the said judgment
dated 01.07.2022. The contentions of the appellants were
that the 1st appellant was made to believe that by such a
compromise, O.P.No.780 of 2021 would alone be disposed
of; whereas in the said judgment rendered on recording the
settlement agreement, it was stated that all litigations
between appellants and the respondents pending before the
Family Court Thiruvananthapuram and also this Court have
been settled. Although the Family Court was apprised of
the error thereby occurred, the review petition was
dismissed.
7. The learned Counsel appearing for the appellants
would contend that a reading of Annexure A1, the settlement
agreement itself it is evident that the purport of the same
was to settle the subject matter of O.P.No.780 of 2021 and
Mat.Appeal No.810 of 2022
no other case. Now, the respondents would interpret the
compromise and also the judgment in O.P.No.780 of 2021 to
mean that all cases pending between the parties are settled
as per the terms of Annexure A1. The learned Counsel
appearing for the appellants would further submit that
Annexure A1 as well as Annexure A2 judgment dated
01.07.2022 are vitiated by fraud, and therefore the same
could be challenged by filing an interlocutory application.
According to the learned counsel, a separate suit for
challenging Annexure A2 judgment is barred under the
provisions of Order XXIII, Rule 3A of the Code of Civil
Procedure, 1908 and the remedy is to approach the same
court by filing an application. In this regard the learned
counsel placed reliance on the decisions in Ajanta LPP v.
Casio Keisanki Kabushiki Kaisha d/b/a Casio
Computer Co. Ltd. & another [(2002) 5 SCC 449] and
R.Janakiammal v. S.K.Kumaraswamy (deceased)
(through LRs. and others [(2021) 9 SCC 114].
Mat.Appeal No.810 of 2022
8. The learned counsel appearing for the respondents,
on the other hand, would submit that the 1 st appellant, who is
a Doctor by profession holding a Post Graduate Decree in
Medicine, after understanding all the clauses in Annexure A1
has signed it. Her counsel also had signed Annexure A1.
Various clauses in Annexure A1 are stated with clarity and
after understanding the same only, the 1st appellant has
signed the compromise. After that, she cannot be allowed to
retract and assail Annexure A2 judgment.
9. The learned counsel for the respondent invited our
attention to Sindhu P.K. v. Sreekumar P.A. and another
[(2015) 3 KLT 869] and Thriloki Nath Singh v. Anirudh
Singh (D) through LRs. and others [(2020) 6 SCC 629]
in order to fortify her contention that once the compromise
was found to be lawful, the court was obliged to record the
same and no challenge to the same by way of appeal or
review can be entertained. In Apex Court in Thriloki Nath
Singh (supra) and this Court in Sindhu P.K. (supra) took the
view that when a compromise is filed before the court and the
Mat.Appeal No.810 of 2022
court is satisfied that it is lawful and entered into between the
parties knowing the contents of the agreement, the court is
obliged as per the provisions of Order XXIII, Rule 3 of the
Code to record the compromise and pass a decree in terms of
the same. There cannot be any dispute with respect to the
said proposition of law. Similarly, the law is settled that when
a compromise decree is a product of fraud played upon the
court, the aggrieved can approach the same court by filing an
interlocutory application to recall the decree. The proviso to
Order XXIII Rule 3 of the Code obligates the court to decide
the question of lawfulness of the compromise, if one of the
parties alleges that the settlement agreement is not lawful.
But that is possible at a stage before recording the
compromise and passing the decree.
10. Annexure A1 settlement agreement was presented
before the Family Court and acting upon it Annexure A2
judgment was passed. In terms of Annexure A2, O.P.No.780
of 2021 was allowed. In Annexure A1, it has been stated that
the following cases between the same parties are pending
Mat.Appeal No.810 of 2022
consideration,-
A. Before the High Court
1) Mat.Appeal No.169 of 2022
2) Mat.Appeal No.668 of 2021
3) O.P.(FC) No.13 of 2022
4) R.P.(FC) No.264 of 2021
B. Before the Family Court, Thiruvananthapuram
1) O.P. No.3004 of 2021
3) O.P.No.780 of 2021
11. Clause No.(5) in Annexure A1 reads,-
"5. ഇര കക കള തമ ൽ കകരളത ല കക ടത കള ൽ
(ബഹ : ഹഹക ടത , ക ട ബകക ടത ത ര വനനപ ര )
ന നൽ ന എല കകസ കള ഒതത കരണത ണ#."
It is the said clause that is now interpreted that both parties
settled all the cases between them.
12. When a suit/petition is settled, the same can be
disposed of either under Rule 1 of Order XXIII as withdrawn
or a compromise decree can be passed under Rule 3 of Order
XXIII of the Code. Clause (5) in Annexure A1 only says that
other cases between the parties would have to be settled. In
what way those cases should be settled has not been
Mat.Appeal No.810 of 2022
mentioned. On the basis of such a clause, either Rule 1 or
Rule 3 of Order XXIII of the Code can be invoked. If there is a
compromise and a decree based on the same has to be
passed, the compromise agreement shall ordinarily be an
executed one and not merely an executory one.
13. As per the definition of the decree in Section 2(2) of
the Code a decree shall be the adjudication of the matters in
controversy in the suit. It can either be preliminary or final. On
the basis of an agreement by which the parties agreed to settle a
suit, without saying how is the suit to be decided and what are
the terms of compromise, no decree can be passed. If the suit is
to be withdrawn also, there shall be a stipulation to that effect.
Clause (5) or any other clause in Annexure A1 does not enable
this Court or the Family Court, Thiruvananthapuram to dispose of
any of the cases mentioned above except, O.P.No.780 of 2021.
Therefore, the apprehension of the appellant that Annexures A1
and A2 would be interpreted to mean that all the aforesaid
pending cases have been settled is genuine. In view of that
Annexure A2 judgment is wrong.
Mat.Appeal No.810 of 2022
14. The 2nd and 3rd appellants are minors. When a
compromise decree is passed in a suit to which minor is a party,
it is the mandate of Order XXXII Rule 7 of the Code to obtain
leave of the court before the disposal of the suit. O.P.No.780 of
2021 was allowed in terms of Annexure A1 compromise without
obtaining such a leave from the court. Leave of the court is a
mandatory pre-requirement when the suit is compromised by
the next friend or guardian. In that view of the matter, Annexure
A2 judgment by which the compromise was recorded is an
apparent error. In such circumstances, the Family Court ought to
have allowed the review petition, I.A.No.5 of 2022 in O.P.No.780
of 2021.
The order of the Family Court dated 03.11.2022 is
therefore set aside by allowing this appeal. I.A.No.5 of 2022
stands allowed. The Family Court will proceed with O.P.No.780 of
2021 in accordance with law.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
Mat.Appeal No.810 of 2022
APPENDIX OF MAT.APPEAL 810/2022
PETITIONER ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE AGREEMENT DATED
01/07/2022.
ANNEXURE A2 CERTIFIED COPY OF THE JUDGMENT DATED
01/07/2022 IN OP NO. 780/2021 OF THE
FAMILY COURT, THIRUVANANTHAPURAM.
ANNEXURE A3 TRUE COPY OF THE DRAFT MEMORANDUM OF
AGREEMENT DATED 05/07/2022 RELATED TO
MAT. APPEAL NO.668 OF 2021.
ANNEXURE A4 TRUE COPY OF THE DRAFT MEMORANDUM OF
AGREEMENT DATED 06/07/2022 RELATED TO
RP(FC) NO.264 OF 2021.
ANNEXURE A5 TRUE COPY OF THE REVIEW PETITION
NUMBERED AS IA NO. 5/2022 IN OP NO.
780/2021 OF THE FAMILY COURT,
THIRUVANANTHAPURAM, DATED 29/08/2022.
ANNEXURE A6 TRUE COPY OF THE OBJECTION, DATED
10/10/2022 FILED BY THE RESPONDENTS IN
THE REVIEW PETITION NUMBERED AS IA NO.
5/2022 IN OP NO. 780/2021 OF THE
FAMILY COURT, THIRUVANANTHAPURAM.
