IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 837 of 2009()
1. P.H.SAFIYA, W/O. C.M.MOHAMMED KUNHI
... Petitioner
Vs
1. C.M.FATHIMABI, W/O. P.P.MOIDEENKUNHI,
... Respondent
2. SAHIDA, D/O. P.P.MOIDEENKUNHI,
3. SAJIDA, D/O. P.P.MOIDEENKUNHI,
4. MOHAMMED SAMEER, S/O. P.P.MOIDEENKUNHI
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :22/07/2010
O R D E R
K.T.SANKARAN, J.
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R.P.No.837 of 2009
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Dated this the 22nd day of July, 2010
ORDER
The revision petitioner in C.R.P.No.645 of 2004 has filed
this Review Petition seeking to review the order dated 7th
February, 2008.
2. The revision petition was filed by the plaintiff in
O.S.No.68 of 1996 challenging the order dated 17.11.2003 in
I.A.No.191 of 2003 by which the court below set aside the
compromise decree passed in the suit. The suit was restored to
file to be decided on the merits.
3. The suit was filed by the Revision Petitioner for
partition, claiming a half share. The property was acquired in
the name of the plaintiff and the first defendant. The first
defendant is the sister of the husband of the plaintiff. By the
compromise, a decree was to be passed for half share to the
plaintiff after cancelling the sale deed executed by the first
defendant in favour of her children, defendants 2 and 3. On the
same date on which the compromise petition was signed by the
parties, another agreement was executed by the husband of the
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plaintiff, husband of the first defendant and the son of the first
defendant, who is the 4th defendant in the present suit. Mention
is made about that agreement in the compromise. The
agreement executed among the husband of the plaintiff, the
husband of the first defendant and the son of the first defendant
was marked as Ext.A1 in the present proceeding. Ext.A1
agreement dated 30.6.1998 would show that consideration for
the compromise in the suit is fulfillment of the conditions in
Ext.A1. Without Ext.A1 being fulfilled, the compromise would
have no existence. The consideration for the compromise in the
suit being the consideration mentioned in Ext.A1 agreement
dated 30th June, 1998, the compromise would fail, if the
consideration in Ext.A1 fails. Ext.A1 is an integral part of the
compromise. That agreement was not produced along with the
compromise.
4. The learned counsel for the Review Petitioner
submitted that it was found by the trial court in the final decree
application and by the High Court in the Revision which arose
out of the final decree proceedings that Ext.A1 agreement
(Ext.B1 marked therein) was not part of the compromise and that
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finding would operate as res judicata in the present proceeding.
The present proceeding is to set aside the compromise decree on
the ground of fraud and on other grounds. The court found that
the compromise cannot be sustained. When it is alleged by one
party that the very compromise is unlawful and it is liable to be
set aside, a finding in the earlier proceedings arising out of the
final decree passed on the compromise would not be binding on
the parties and it cannot be said that the said finding would
operate as res judicata against the petitioner in the present
proceeding for setting aside the preliminary decree. If the
preliminary decree goes, the final decree would have no
existence and it would fall to the ground. If so, any order in the
final decree proceedings would not be binding as res judicata in
a proceeding initiated by one of the parties to the suit to set
aside the preliminary decree pointing out vitiating
circumstances. If it is held that the preliminary decree is bad
and liable to be set aside, all the findings rendered in the final
decree proceedings would vanish. If so, such a proceeding could
not be projected as a finding constituting res judicata. This
contention can be examined in another angle. Let us take it that
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no contention was taken by the defendants in the suit
challenging the maintainability of the final decree proceedings
and let us take it that a final decree was passed. Later,
proceedings were initiated to set aside the preliminary decree on
the ground of fraud or other vitiating circumstances. Could the
plaintiff say that the defendants who wanted to set aside the
preliminary decree are barred by constructive res judicata in
view of the fact that they did not raise that contention in the final
decree proceedings? The answer would be an emphatic ‘no’. If
so, the contention which is now raised by the petitioner that the
order in the final decree application and the revision arising
there from would constitute as res judicata barring the present
application to set aside the preliminary decree, is unsustainable.
5. The learned counsel for the petitioner contended that
the only ground on which the preliminary decree was sought to
be set aside was that it was vitiated by fraud. The court below
held that fraud as such was not proved. However, on a
consideration of all the facts and circumstances of the case, the
court below held that Ext.A1 agreement is void. Ext.A1 being a
part of the compromise, the preliminary decree, which was
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passed on the basis of the compromise, would be inexecutable.
The court below also found that Ext.A1 agreement is void as the
parties were under a mistake of the essential facts of the
agreement. The parties knew well what their contentions were.
They have also adduced evidence on all the aspects touching
upon the compromise and the agreement. The defendants
wanted to set aside the preliminary decree based on the
compromise on the ground of vitiating circumstances. On that
basis, the parties went to trial. The court could arrive at
different findings on the basis of that main contention. The court
considered the evidence and arrived at the finding that the
parties were under a mistake of fact in Ext.A1 and therefore, it is
void and that Ext.A1 agreement being an integral part of the
compromise, the compromise could not be acted upon and made
a basis for passing the preliminary decree. I do not think that
the Review Petitioner was prejudiced in any way by any alleged
deficiency in the pleadings.
6. There is yet another ground on which it could be held
that Ext.A1 forms part of the compromise. The fourth defendant
in the suit is party No.3 in Ext.A1 agreement. He is the son of
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the first defendant. He is bound by Ext.A1 agreement. The first
defendant had transferred the property to her children,
defendants 2 and 3. Defendants 2 and 3 had transferred the
property to the fourth defendant. The fourth defendant, as per
the terms of the compromise, conceded for a half share in the
property to the plaintiff. The fourth defendant was a party to the
compromise and a party to Ext.A1 agreement. By conceding to
the compromise decree, he would lose his absolute title to the
property, to the extent of the half share of the plaintiff. If the
compromise decree is set aside, he would stand to gain and he
could retain the property unless it is otherwise held at the trial
that the document is vitiated. If so, the fourth defendant being a
party to the agreement and a party to the compromise, I am of
the view that Ext.A1 agreement forms an integral part of the
compromise and the parties are bound by the compromise. Even
going by Rule 3 of Order 23, it is clear that the compromise need
not confine to the subject matter of the suit. The subject matter
of the suit as well as other matters were part of composite terms
of the compromise between the parties. On the failure of Ext.A1,
naturally the compromise also would fail. The court below
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accepted this and held that the compromise preliminary decree
is liable to be set aside.
I do not find any ground to review the order dated 7th
February, 2008 passed in the CRP. There is no mistake or error
apparent on the face of the record which warrants a review of
the order. There is no sufficient reason to allow the Review
Petition. Accordingly, the Review Petition is dismissed. No
order as to costs.
K.T.SANKARAN,
JUDGE
csl