IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22539 of 2009(R)
1. C.RAMABHADRAN PILLAI (AGED 52 YEARS)
... Petitioner
Vs
1. USHAKUMARI, AGED 47 YEARS,
... Respondent
2. KRISHNA PRASAD, AGED 24 YEARS,
For Petitioner :SRI.G.JOSEPH
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :10/08/2009
O R D E R
R.BASANT & M.C.HARIRANI, JJ.
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W.P.(C).No.22539 of 2009
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Dated this the 10th day of August 2009
J U D G M E N T
BASANT,J
This petition has been filed by the petitioner under Article
226 and 227 of the Constitution of India against Ext.P6 judgment
and Ext.P7 decree passed by the Family Court, Kollam. The
petitioner is the husband and the respondents herein are his wife
and child. The respondents had approached the Judicial First
Class Magistrate Court, Attingal with a maintenance claim under
Section 125 Cr.P.C in 1986 and Ext.P2 order was passed by the
Family Court directing payment of maintenance at the rate of
Rs.150/- and Rs.100/- per mensum respectively to respondents 1
and 2. While that order was in force, the respondents
approached the Family Court, Kollam with O.S.No.21/98
claiming maintenance. Maintenance was claimed at a much
higher rate than what was awarded under Ext.P2. When that
suit for maintenance came up for consideration, parties were
represented by their counsel and it was reported that the matter
has been settled between the parties. A compromise petition
W.P.C.No.22539/09 2
was filed. The learned Judge of the Family Court accepted the
said compromise and passed Ext.P6 judgment dated 26/12/1998.
Ext.P7 decree followed. Steps have now been taken for
execution of the said decree. As per the said decree, the
petitioner has to assign four cents of land belonging to him
within a period of seven months from the date of the decree after
discharging all other liabilities in respect of the property. The
decree has not been satisfied. E.P.No.07/09 has been filed before
the Family Court, Kollam for execution of the said compromise
decree. It is at this stage that the petitioner has come to this
court requesting this court to invoke its constitutional
jurisdiction under Article 226 and 227 of the Constitution of
India to set aside Exts.P6 and P7.
2. What is the reason? The learned counsel for the
petitioner contends that Exts.P6 and P7 are the result of fraud
played on him by the respondents as also his own counsel. He
had not intended to compromise the claim. He had not
knowingly signed the joint statement and has not suffered the
impugned judgment and decree. He was defrauded to sign the
joint statement and to suffer the decree. This, in short, is the
contention raised by the learned counsel for the petitioner.
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3. Under Section 19(2) of the Family Courts Act, no
appeal shall lie from a decree or order passed by the Family
Court with the consent of the parties. An appeal is thus
proscribed under Section 19(2) of the Family Court’s Act.
According to the appellant, gross injustice results from the
circumstance that his counsel as well as the respondents have
colluded to get him to subscribe to a joint compromise petition
and consequently suffered judgment and decree.
4. The contentions raised need and demand resolution of
complicated questions of fact. We have no hesitation to hold that
such complicated questions of fact cannot be decided and
resolved in this writ petition. If the petitioner has any grievance
that the impugned decree is not liable to be executed for the
reason that it is void being the result of fraud, he must raise
appropriate contentions before the appropriate fora and get that
controversy resolved by adducing evidence in such proceedings
with notice to the other side. We are certainly not persuaded to
agree that such a complicated question of disputed fact can or
ought to be resolved in proceedings under Article 226/227 of the
Constitution of India. The petitioner shall be at liberty to raise
all relevant contentions before the Family Court in the execution
W.P.C.No.22539/09 4
petition or institute appropriate proceedings for declaration that
the compromise petition and all proceedings thereafter is
vitiated.
5. At any rate, in the nature of the facts and
circumstances of this case, we are not persuaded to invoke the
extraordinary constitutional jurisdiction under Article 226 and
227 of the Constitution of India for resolution of that disputed
facts.
6. With the above observations, this writ petition is
dismissed.
(R.BASANT, JUDGE)
(M.C.HARIRANI, JUDGE)
jsr
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W.P.C.No.22539/09 6
R.BASANT & M.C.HARIRANI, JJ.
.No. of 200
ORDER/JUDGMENT
29/07/2009