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Annasami Mudaliar Vs. Ekambari Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 29 of 1952
Judge
Reported inAIR1953Mad712; (1953)1MLJ649
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 23, Rule 3
AppellantAnnasami Mudaliar
RespondentEkambari Ammal
Appellant AdvocateA. Sundaram Iyer, Adv.
Respondent AdvocateS. Muthiah Mudaliar and ;M. Chokkalingam, Advs.
DispositionAppeal dismissed
Cases ReferredTaraprasanna Sarkar v. Kalikamohan
Excerpt:
- - at that stage, a compromise was entered into which was signed by the plaintiff and the first defendant as well as by the advocates appearing for them. 245 of 1951, the first defendant preferred the above appeal as well as the alternative civil revision petition. if it is satisfied that the parties have entered into a lawful compromise, to pass a decree. we are therefore satisfied that what has happened in this case is that the learned judge on being satisfied that the decree passed by him on the footing of the compromise was unjustifiable and without jurisdiction invoked the inherent powers vested in him and thereby set it aside......the fourth defendant filed an application under order 9, rule 13, c. p. c. to set aside the decree passed ex parte against her and the plaintiff filed another application purporting to be under order 23, rule 3 and section 151, c. p. c. praying that the decree passed in terms of the compromise filed in court should be set aside. various grounds are alleged in the application for setting aside the compromise by the plaintiff but it is unnecessary to restate them in this appeal. had it become necessary for us to find out whether a valid compromise had been entered into by the plaintiff and the first defendant, we would probably have gone deeper into that question but then the course which this litigation has taken has rendered it unnecessary for us to delve deep into that matter. 5......
Judgment:

Govinda Menon, J.

1. A preliminary objection is raised by Mr. Muthiah Mudaliar who appears for the contesting respondent that the order of the lower court is not appealable; and in order to appreciate the point raised by the learned counsel it is necessary to set forth a few facts.

2. Original Suit No. 71 of 1947 on the file of the Court of the Subordinate Judge, Vellore, is a suit by one Ekambari Ammal, daughter of one Lokanatha Mudaliar, for partition and recovery of possession of her share in the properties which belonged to her father. Defendants 1 to 3 are the surviving brothers of Lokanatha Mudaliar and the fourth defendant, Manikkammal, is a sister of the plaintiff and a daughter of Lokanatha Mudaliar. According to the plaintiff, it was stated that before the death of Lokanatha Mudaliar there was a division in status of the joint family properties between Lokanatha Mudaliar and his three brothers but that there was no separation by metes and bounds and the property remained joint on that score. The plaintiff therefore stated that in the properties which were the joint family properties, Lokanatha Mudaliar had a one-fourth share and plaintiff as one of the two daughters of Lokanatha Mudaliar is entitled to 1/8th in the whole of the properties.

3. The suit was contested mainly by the first defendant on the ground that before the death of Lokanatha Mudaliar he executed a will by which a fair proportion of his properties was bequeathed in favour of the first defendant. The first defendant admitted that there was a division between Lokanatha Mudaliar and the three brothers and further stated that the division had been completed by metes and bounds with the result that properties were handed over to Lokanatha Mudaliar who had bequeathed them under the will.

4. The suit went to trial; and the first defendant who propounded the Will examined a witness or two. At that stage, a compromise was entered into which was signed by the plaintiff and the first defendant as well as by the advocates appearing for them. It is also seen from the original compromise that the second defendant has signed the compromise. When that was filed in court, the court passed an order to the effect that as the plaintiff and defendants 1 and 2 appeared at the time of the petition coming on for hearing, a decree in terms of the compromise has been passed. No mention has been made of the fourth defendant in the compromise or of her lights. Subsequently, the fourth defendant filed an application under Order 9, Rule 13, C. P. C. to set aside the decree passed ex parte against her and the plaintiff filed another application purporting to be under Order 23, Rule 3 and Section 151, C. P. C. praying that the decree passed in terms of the compromise filed in court should be set aside. Various grounds are alleged in the application for setting aside the compromise by the plaintiff but it is unnecessary to restate them in this appeal. Had it become necessary for us to find out whether a valid compromise had been entered into by the plaintiff and the first defendant, we would probably have gone deeper into that question but then the course which this litigation has taken has rendered it unnecessary for us to delve deep into that matter.

5. The learned Judge holding that in a partition suit every defendant must be deemed to be a plaintiff and every plaintiff reciprocally must be deemed to be a defendant, on the ground that all the parties entitled to a share in the joint family properties had not signed the compromise, set aside the decree against the fourth defendant on her application. Whether that order is correct or not it is unnecessary for us to determine now because that has become final and no revision or appeal has been filed against the setting aside of the 'ex parte decree. On the petition filed by the plaintiff to set aside the compromise decree, the learned Judge purporting to act under Sections 151 and 153 C. P. C. set aside the compromise decree and directed the suit to be tried on the merits. Against that order of the learned Judge in I. A. No. 245 of 1951, the first defendant preferred the above appeal as well as the alternative civil revision petition.

6. At the time of the admission the learned Judge before whom it came up dismissed the civil revision petition on the ground that no question of jurisdiction arose; and the question of appealability was then left to be decided later on.

7. Now, it is clear that the learned Judge in the court below purported to act under Section 151. C. P. C. though in the application by the plaintiff, Order 23, Rule 3, C. P. C. was also mentioned. We have doubt whether Order 23, Rule 3 C. P. C. can have the remotest application to the facts of the present case. Under that provision of law, where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by a lawful agreement or compromise, then the court shall pass a decree in accordance therewith so far as it relates to the suit. Therefore, what this rule provides is that if the parties come to court with a compromise petition and either both of them pray that a compromise decree be passed or one of them prays that a compromise decree be passed, while the other disputes the validity ofthe compromise, in such a case It is open to the court. If it is satisfied that the parties have entered into a lawful compromise, to pass a decree.

How this provision of law can be made applicable to an act of the court by which it sets aside a decree passed, it is difficult to understand. The learned Judge does not in so many terms explicitly or by necessary implication say that he has invoked Order 23, Rule 3, C. P. C. in passing the order under appeal. On the other hand, the learned Judge refers to two decisions of the Calcutta High Court namely -- 'Gobind Chandra Sardar v. Bhagbat Sardar', AIR 1915 Cal 473 (A), a decision of Sir Asutosh Mukerjee Kt. and Beechcroft JJ. and -- 'Taraprasanna Sarkar v. Kalikamohan : AIR1924Cal80 , another decision of Sir Asutosh Mukerji and Rankin JJ. where the learned Judges have held that it is open to a court to set aside a compromise for valid reasons by applying Sections 151 and 153 C. P. C. The decision in : AIR1924Cal80 (B)' is very instructive because in that case specific mention is made of Sections 151 and 153, C. P. C. We have no doubt whatever that the Subordinate Judge here purported to set aside the decree passed in terms of the compromise by the application of the inherent power vested in him under Section 151, C. P. C. Mr. A. Sundaram Iyer contends that we must read into the order of the learned Judge the importation of the application of Order 23, Rule 3, C. P. C. But it seems to us that when that provision of the law cannot have any kind of application, by the mere fact that it is stated in the petition, it cannot be said that such a provision will be applicable. As an example, if in a petition to pass a decree in terms of the compromise, the 'party by design or inadvertence also puts a section of the Criminal Procedure Code, it cannot be said that a criminal revision lies to the High Court or to any other court. We are therefore satisfied that what has happened in this case is that the learned Judge on being satisfied that the decree passed by him on the footing of the compromise was unjustifiable and without jurisdiction invoked the inherent powers vested in him and thereby set it aside. When once we come to the conclusion that the order of the learned Judge in the court below was passed under Section 151, C. P. C. it is clear that no appeal lies to this court.

8. This civil miscellaneous appeal is thereforedismissed. As we feel that the appellant hasmisconceived his remedy we make no order asto costs in this appeal.


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