Madras High Court
V.Kandhasamy vs / on 17 June, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.78 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 09.06.2025 Pronounced On : 17.06.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
A.S.No.78 of 2022
K.Pavuna (died),
1. V.Kandhasamy.
2. K.Giri Gopal.
S/o.V.Kandhasamy,
both are No.67-C, Idayar Palayam Main Road,
Kuniamuthur Post,
Coimbatore – 641 008. ... Appellants/Respondents 2 & 4
Plaintiffs 2 & 4
/versus/
1. S.Vijaya Krishnan,
S/o.K.Subramanaiam,
New Door No.6/45,
Perumalsamy Nagar,
B.K.Pudhur, Kuniamuthur Post,
Coimbatore – 641 008.
2. Smt.Vijayabanu.
W/o.Senthilkumaran,
Vathiyar Thottam, Vallal Nagar,
Pellayar Puthur, SIDCO Post,
Coimbatore. ... Respondents 1 & 2/Defendants 8 & 9
1/13
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A.S.No.78 of 2022
3. K.Geetha.
D/o.V.Kandhasamy,
legal heirs of deceased sole plaintiff
No.67-C, Idayar Palayam Main Road,
Kuniamuthur Post,
Coimbatore – 641 008. ... 3rd Respondent /3rd plaintiff
Appeal Suit has been filed under Section 96 read with XLI Rule 1 of the
Code of Civil Procedure, 1908 pleased to set aside the fair and decreetal order
dated 06.12.2021 allowing the application filed under order VII Rule 11 of C.P.C
made in I.A.No.5 of 2021 in O.S.No.129 of 2014 and thereby rejecting the plaint in
O.S.No.129 of 2014 on the file of the IV Additional District & Sessions Judge,
Coimbatore.
For Appellants : Mr.S.Ravichandran Sundaresan
For Respondents : Mr.K.Myilsamy, for
: Mr. R.Dilli Kumar, for R1 & R2
: No appearance, for R3
JUDGMENT
The Appeal Suit is filed by the respondents/plaintiffs against the
judgment and decree passed in O.S.No.129 of 2014, on the file of IV Additional
District & Sessions Judge, Coimbatore.
2. In respect of properties left behind by Krishnasamy Konar, a suit for
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partition filed by his daughter against the other legal heirs of Krisnasamy Konar,
contending that the compromise decree entered between the parties in O.S.No.233
of 1996, dated 29.08.1996 is not valid as it was obtained by misrepresentation and
fraud. Furthermore, since the final decree was not engrossed in the stamp paper,
hence the decree has become infructuous. Hence, the properties which remains
under due to be divided.
3. Application under Order VII Rule 11 of C.P.C., filed by the 8th and
9th defendants, who are the sons of the first defendant and the grandsons of
Krishnasamy Konar. They have pleaded that the compromise decree was acted
upon and the parties after taking possession of the respective shares enjoying it
exclusively. Therefore, the subsequent suit for partition filed in respect of the same
properties after a lapse of 18 years, is barred by law.
4. The plaint was rejected holding that, pursuant to the compromise
decree passed in the partition suit O.S.No.233 of 1996, dated 29.08.1996, the suit
subject properties had already been divided among the legal heirs of Krishnasamy
Konar, including the plaintiff. The first defendant, in the suit had settled a portion
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of his share to his sons, who are the defendants 8 and 9. The subsequent suit to
declare the earlier compromise decree, passed 18 years ago, is not maintainable.
The failure to get the decree engrossed on a Non-Judicial Stamp Paper will not
render the decree infructuous. A Order XXIII Rule 3A of C.P.C., bars subsequent
suit to nullify the earlier compromise decree, on the ground that the decree is
unlawful.
5. The plaintiff died during the pendency of the application. Her legal
heirs got themselves impleaded and contested the application. Aggrieved by the
rejection of the plaint on the grounds of limitation and in view of the bar under
Order XXIII Rule 3A of C.P.C., the present appeal suit is filed.
6. The learned counsel for the appellants submitted that the Court
below failed to consider that, despite the compromise decree dated 29.08.1996, the
parties continued to be in joint possession and the earlier decree was neither
engrossed on stamp paper nor acted upon. In the absence of division of the
properties, a fresh partition suit is maintainable.
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7. Both the questions, whether the properties continue to be in joint
possession and whether the suit is barred by limitation are mixed questions of fact
and law. In such circumstances, the trial Court ought not to have rejected the
plaint without subjecting the parties to undergo trial.
8. It was also contended by the Learned Counsel for the appellants that
a similar petition filed by the first defendant for rejection of plaint was dismissed.
The present petition is filed by the sons of the first defendant. The trial Court
erred in entertaining the second petition for the same reasons, after the dismissal of
the first petition.
The point for determination:-
Whether rejection of plaint on the ground of
limitation and barred under Order XXIII Rule 3A of
C.P.C., is in accordance to law in force?
9. The suit for partition laid on the following grounds:
a) The earlier compromise decree obtained by fraud and
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misrepresentation.
b) The compromise decree not acted upon. The parties are still in joint
possession.
c) The earlier compromise decree not engrossed on the Stamp paper,
hence the decree has become infructuous.
10. The Hon'ble Supreme Court in S.P.Chengalvaraya Naidu vs.
Jagannath, reported in (1994) 1 SCC 1, it is held that, fraud and misrepresentation
are questions of fact. Decree obtained by playing fraud on the Court is non est in
law for all time and the same can be challenged at any time, even in a collateral
proceedings. But then, the plaint must clearly disclose how the fraud was
committed.
11. In the instant case, it is not the case of the plaintiff that she came to
know about the compromise decree only soon before filing the suit. In fact, the
plaintiff is one of the party to the earlier suit in O.S.No.233 of 1996, which was
decreed 18 years ago based on the compromise entered between the parties. She
did not questioned the validity of the compromise decree within the time
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prescribed, despite she had knowledge of the decree.
12. Even in the present suit, the plaintiff's contention is that she agreed
to the compromise believing the promise made by the first defendant that he will
compensate her for the difference in value at a later point of time, but he failed.
The averment in the plaint, even if taken to be proved, it will not be a ground to
vitiate a decree passed by the Court based on compromise between the parties. If
at all there was any breach of promise, the plaintiff ought to have sought redressal
for the said breach within the period of limitation prescribed.
13. This Court finds that the plaint averments regarding promise to
pay money for the difference in value is without any base. The breach of any such
promise cannot be termed as fraud or misrepresentation. More so, for breach of
promise not form part of the terms of compromise, the decree cannot be declared
as null and void that too after 18 years of its existence.
14. Order VII Rule 11 (d) of C.P.C., empowers the Court to reject the
plaint where the suit appears, from the statement in the plaint, to be barred by any
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law. From the statements, in the plaint, it is clear that though the subject suit is
filed to declare the earlier compromise decree as null and void on the ground of
fraud and misrepresentation. The said prayer in this suit squarely covered under
Order XXIII Rule 3A of C.P.C., which reads as below:-
“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.”
15. The learned trial Judge had clearly observed that the earlier
application under Order VII Rule 11 of C.P.C., filed by the first defendant, was not
dismissed on merits. While dismissing the said application, the Court failed to take
note of Order XXIII Rule 3A of C.P.C., which came into force from 01.02.1977.
16. The other limb of argument put forth by the learned Counsel for
the appellant is that the compromise decree passed on 29.08.1996 was never got
engrossed on the Stamp paper and therefore, it has become infructuous.
17. In support of his argument, the Learned Counsel for the appellants
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had referred to the judgment of this Court in Ittoli Moidin Koya’s son Koyatti and
Ors -vs- Imbichi Koya and Ors reported in AIR 1946 MAD 534, wherein the
Court after considering earlier Full Bench Judgment of this Court rendered in
Ramayya -vs- Achammal: ILR 1945 Mad 160 (FB) and the Judicial Committee
reported in 59 MLW 196: Ram Rattan -vs- Parmanand concluded that, the effect
of not engrossing the final decree for partition on a Non-judicial stamp paper is a
curable defect. The parties can apply to the Court to issue decree engrossed in
stamp paper after supplying proper Non Judicial Stamp paper. Dehors of the
compromise decree, the factum of partition can be proved through other evidence.
18. The point as to whether the failure to get the final decree
engrossed in stamp paper will render the decree infructuous been held in negative
by the Hon’ble Supreme Court in Hameed Joharan (died) by LRs. vs. Abdul
Salam (died) by LRs. reported in 2001 (7) SCC 573 as below:-
“31. Though several other old and very old decisions
were cited but in view of the pronouncement lately by this
Court and as discussed herein before, we are not inclined to
deal with the same in extenso, save however recording that
contra view recorded earlier by different High Courts cannot
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be termed to be good law any longer.
32. The decision in Shankar Balwant Lokhande v.
Chandrakant Shankar Lokhande, 1995(3) SCC 413 case
cannot but be said to be on the special facts situation and is
thus in any event clearly distinguishable.
33. Be it noted that the legislature cannot be sub-
servant to any personal whim or caprice. In any event,
furnishing of engrossed stamp paper for the drawing up of
the decree cannot but be ascribed to be a ministerial act,
which cannot possibly put under suspension a legislative
mandate. Since no conditions are attached to the decree and
the same has been passed declaring the shares of the parties
finally, the Court is not required to deal with the matter any
further - what has to be done - has been done. The test thus
should be - Has the court left out something for being
adjudicated at a later point of time or is the decree contingent
upon the happening of an event - i.e. to say the Court by its
own order postpones the enforceability of the order - In the
event of there being no postponement by a specific order of
Court, there being a suspension of the decree being
unenforceable would not arise. As a matter of fact, the very
definition of decree in section 2(2) of the C.P.C. Code lends
credence to the observations as above since the term is meant
to be 'conclusive determination of the rights of the parties”
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19. The statements in the plaint does not disclose any material to
indicate that the compromise decree was obtained by fraud or misrepresentation.
In the absence of any material to show joint possession among the parties, the
plaint, on the face of the reading, suffers legal bar.
20. Engrossment on the final decree is only an administerial function.
Having admitted the passing of decree, no further proof for the passing of decree is
required. In this case, it is not the execution or enforcement of the said decree is
sought. Contrarily, a declaration to set aside the decree already enforced is sought.
Therefore, even if the final decree is not engrossed in a Non-Judicial Stamp paper,
it will not render the effect of the decree infructuous. Therefore, the prayer in the
suit is illconceived without any cause of action.
21. As a result, the Appeal Suit stands dismissed. There shall be no
orders as to costs.
17.06.2025
Index :Yes.
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Neutral Citation :Yes.
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To:-
1. The IV Additional District & Sessions Judge, Coimbatore.
2. The Section Officer, V.R. Section, High Court, Madras.
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Dr.G.JAYACHANDRAN,J.
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Pre-delivery judgment made in
17.06.2025
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