IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1054 of 2010(O)
1. LISSY ANTONY, W/O.CHIRAYATH ANTONY
... Petitioner
Vs
1. K.A.GEORGE, S/O.LAGE G.A.ABRAHAM,
... Respondent
For Petitioner :SRI.TOJAN J. VATHIKULAM
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/12/2010
O R D E R
THOMAS P.JOSEPH, J.
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O.P(C) NO.1054 of 2010
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Dated this the 13th day of December, 2010
J U D G M E N T
Defendant in O.S. No.444 of 2004 of the court of learned
Additional Sub Judge, North Paravur is the petitioner before me
challenging correctness of Ext.P3, order dated 23.01.2009.
Respondent sued petitioner for specific performance of an
agreement for sale. There was a compromise decree passed in
favour of respondent on 08.04.2005. Petitioner filed I.A. No.4822
of 2007 to recall the compromise decree on the ground of fraud
and coercion. That application was dismissed by the impugned
order dated 21.01.2009. That order was challenged in F.A.O.
No.119 of 2010. That appeal also was dismissed as not
maintainable vide judgment dated 24.09.2010. Thereafter
petitioner has filed this Original Petition under Article 227 of the
Constitution on 07.12.2010. It is contended by learned counsel
that court below has taken an erroneous view that I.A. No.4822 of
2007 was not maintainable under Rule 3 of Order XXIII of the Code
of Civil Procedure (for short, “the Code”) and that the finding
entered by the learned Sub Judge is perverse.
2. I have gone through the order under challenge. Case
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of petitioner is that she had entered into an agreement with one
Aby George who was out of India and while filing the written
statement agreeing for a compromise decree she was given the
impression and made to believe that the suit is filed on behalf of
the said Aby George and accordingly she agreed for the
compromise decree. She stated so as P.W.1 in the court below.
Respondent contended that petitioner had filed written statement
admitting the contentions raised in the plaint and the suit was
decreed on 08.04.2005. He deposited the balance purchase
price of `.13.50 lakhs in the court below. He denied that there
was fraud or coercion in the matter as pleaded by the petitioner.
3. It came out in evidence that the plaint and written
statement were prepared in Malayalam and that petitioner was a
one time member of the local authority. It also came out that
petitioner had applied to rescind the contract (obviously under
Section 28 of the Specific Relief Act) alleging that respondent
refused to take steps to execute the document. She also filed
application to withdraw the balance amount deposited by the
respondent. There was yet another application for transferring
the amount to Fixed Deposit. Court below considered these
matters and held that contention of petitioner that she happened
to be a party in the compromise decree on account of fraud and
O.P(C) No.1054 of 2010
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coercion cannot be accepted.
4. No doubt when a compromise on which the decree
is passed is vitiated by any vitiating circumstance proper course
is to seek the judgment and decree to be recalled by recourse to
Rule 3 of Order XXIII of the Code. A separate suit is bad as
specifically stated in Rule 3A of Order XXIII of the Code. Hence
the view taken by the learned Sub Judge that I.A. No.4822 of2007
is not maintainable cannot be accepted. But that finding of the
court below is of no consequence since learned Sub Judge has
decided the application on merit as well. On going through the
records I am not persuaded to think that finding entered by the
learned Sub Judge is either perverse or incorrect having regard to
the facts and circumstances stated above. It is also relevant to
note that though F.A.O. No.119 of 2010 was disposed of on
24.09.2010 this petition is preferred only on 07.12.2010. In the
circumstances I do not find reason to interfere with the impugned
order.
Original Petition fails and it is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv