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Adimali St. Paula Yakkobaya Suriyani Church Vs. Ithappiri Paily - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.M.A. No. 11 of 1971
Judge
Reported inAIR1972Ker180
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3
AppellantAdimali St. Paula Yakkobaya Suriyani Church
Respondentithappiri Paily
Appellant Advocate M.P. Abraham,; K.M. Mathew and; K.K. Yakkob, Advs.
Respondent Advocate K.S. Sebastian and; V.C. James, Advs.
DispositionAppeal dismissed
Cases Referred(see Kishori Mukhi v. Dhaneswar Sahu
Excerpt:
property - consent-decree - order 23 rule 3 of code of civil procedure, 1908 - compromise decree embodying condition of future payment could be enforced only by separate suit in event of default - it was hardly possible to spell out mutual compromise from impugned document - compromise of suit was in fact put off to future date - impugned document did not amount to compromise or adjustment of suit - held, decree passed on basis of impugned document set aside as it could not be said to be consent decree. - - above all is the circumstance well droved in the case, that ext......of the civil procedure code, sub-section is to the following effect:'no appeal shall lie from a decree passed by the court with the consent of parties.'i was taken to some reported cases also in support of this position. but the crux of the matter is whether ext. p-1 would amount to a compromise so as to fall within the compass of o. 23, r. 3. rule 3 reads:--'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, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject 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 suit.'what is contemplated.....
Judgment:

K. Sadasivan, J.

1. The appellant is the plaintiff. He sued the defendants in O. S. 78 of 1969 in the Devicolam Munsiff Court, for recovery of possession of a building with arrears of rent. The plaintiff averred that the plaint schedule property belonged to the plaintiff-church and it was leased out to the 1st defendant in 1965. The 1st defendant spent Rs. 295 for electrifying the building; but that amount was set off towards arrears of rent. The term of the lease expired on 25-7-1969 and a notice demanding surrender was issued on 5-9-1969. The 2nd defendant was impleaded as a sub-lessee. The 1st defendant contended that he was allowed to be in possession of the building even after the expiration of the lease. The building was constructed by him. He had also the contention that the plaintiff has no representative capacity to sue for the church. The alleged sub-lease to the 2nd defendant was denied.

2. On 2-6-1970 the plaintiff filed I. A. 316/70 to record a compromise entered into between the plaintiff and the 1st defendant whereby the defendant is statedto have agreed to give vacant possession of the building within a month from 5-4-1970. That compromise was marked Ext P-1 and it was recorded by the learned Munsiff. In view of that, the other issues arising in the case, according to the learned Munsiff, did not call for a decision. To quote the learned Munsiff:--

'Hence the issues in this suit are not considered and as per the order in I. A. 316 of 1970 the suit is decreed in terms of the compromise, Ext. P-1, in I. A. 316 of 1970. Ext. P-1 in I. A. 316/70 will form part of the decree. The period for surrender of possession of the building expired on 4-5-70, i.e., about 5 months back, In the circumstance of the case the defendant is given a month's time more from this date to give vacant possession of the building.'

The 1st defendant took up the matter in appeal and the learned District Judge of Kottayam set aside the decree of the learned Munsiff and remanded the case to him for trial and disposal afresh according to law. It is against that decision of the appellate Judge that the plaintiff has come up in civil miscellaneous appeal.

3. Before me the learned counsel for the appellant argued that the appeal before the learned District Judge itself was incompetent as it was barred by Section 96(3) of the Civil Procedure Code, Sub-section is to the following effect:

'No appeal shall lie from a decree passed by the court with the consent of parties.'

I was taken to some reported cases also in support of this position. But the crux of the matter is whether Ext. P-1 would amount to a compromise so as to fall within the compass of O. 23, R. 3. Rule 3 reads:--

'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, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject 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 suit.'

What is contemplated in the above rule is an adjustment of the suit whether wholly or in part, Ext. P-1 does not in so many words refer to the settlement of the suit, It, on the other hand, embodies a promise to handover the key of the building to the R.D.O, on a future date, viz., the 4th of May, 1970, (Ext. P-1 is dated 5-4-1970). The agreement thus embodies only an executory contract. In Sehokumar Prasad v. Devendra Narain, AIR 1964 Pat 24 it was held that:--

'A compromise decree embodying a condition of future payment could be enforced only by a separate suit in the event of default.'

So also in the present case the undertaking embodied in Ext. P-1 that the defendant would surrender the key to the R.D.O. a month hence, if not carried out, the remedy open to the plaintiff was to seek its enforcement by means of a suit. In Khalli Rath v. Ramachandra, AIR 1953 Orissa 74, a compromise decree was passed whereby it was agreed between the parries that the appellant would pay rent at the rate of Rs. 5/- per month for one year and at the end of the year he would vacate the house without notice. A decree was passed in terms of the compromise; when the defendant did not vacate as was agreed by him, the court held that:--

'The plaintiff is not entitled to recover possession through court as the compromise was silent as to what should be done in the event of default and it was therefore held that the decree was not executable'.

It is hardly possible for one to spell out a mutual compromise from Ext. P-1. The defendant would no doubt undertake to handover the key but the document is silent as to how the suit is to be settled. Below the defendants' signature one Pylee Varkey has scribbled something and signed. What he has stated is that when the defendants surrender the building, the plaintiff would be prepared to compromise the suit.

'Ithappiri kettitom ozhivakkitharunna murrakku ethe sambandhichulla Civil Case nangal rajiyakkan thayyaranu.' (The original in Malayalam transliterated -- Ed.)

So the compromise of the suit is in fact put off to a future date. How could it then be said that Ext. P-1 is a compromise and that the decree passed on its basis would be a decree passed on consent of parties. There is also the further point that Pylee Varkey who has signed Ext. P-1 has no authority to represent the plaintiff-church. The person who has represented the church in the suit as plaintiff is Uthup son of Mathai, So the junction of 'Pylee Varkey' in Ext. P-1 can have no legal effect. Ext. P-1 discloses also the strange and unusual feature that some strangers who are not parties to the suit have also put their signature thereon. Above all is the circumstance well Droved in the case, that Ext. P-1 was brought into existence by coercion, fraud and undue influence. The mere fact that the R.D.O. had to intervene and undertake to receive the key from the defendants on a future date, itself would show that pressure was brought to bear upon the defendant. An attempt, of course, was made by the plaintiff-church to evict the defendant, by force and the report that the R.D.O. got from the place was that about one thousand people had collected in front of the defendants' shop evidently to see the drama of the defendants being evicted by force. The R.D.O. had deposed that when hearrived at the scene about hundred persons were present. Even if in the report the number had been exaggerated the presence of hundred people in front of the shop itself is un-understandable. Thepolice officers up to the level of the A.S.P. as arrived and according to the defendant, his very life was in danger and it was somehow to escape out of the situation that he placed his signature on Ext. P-1.

'When a compromise petition was attacked on the ground of fraud no enquiry into the alleged fraud is contemplated and parties have to agitate the question in a separate suit. In such a case the court cannot pass a compromise decree' (see Kishori Mukhi v. Dhaneswar Sahu-- AIR 1962 Orissa 110).

The enquiry as to the truth of the, defendants' allegation in the present case was, therefore, unnecessary and the learned Munsiff ought to have referred the plaintiff to a separate suit. Such an en-quiry was unnecessary also for the reasons that even if it was found that Ext. P-1 was entered into by the defendant of his own free will, the document as already indicated by me does not amount to a compromise or adjustment of the suit. Ext. P-1 would therefore, lead us nowhere and the learned Munsiff was wrong in having passed a 'consent decree' on the basis of such a document. The remand of the suit ordered by the learned appellate Judge is, therefore, proper and in confirmation of his judgment and decree this C. M. Appeal is dismissed with costs.


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