IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31939 of 2009(O)
1. RADHAMANI
... Petitioner
Vs
1. LALI MATHAI
... Respondent
For Petitioner :SRI.C.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :09/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.31939 OF 2009 (O)
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Dated this the 9th day of November, 2009
J U D G M E N T
Petitioner is the 2nd defendant in O.S.No.138 of 2002 on
the file of the Munsiff Court, Punalur. The 3rd respondent in
the present writ petition is her husband and he was the
1st defendant in that suit. Suit filed by respondents 1 and 2
with three others as plaintiffs was compromised with the
defendants, and Ext.P1(a) contain the terms of the
compromise settled by the parties. The plaintiffs/decree
holders initiated steps for execution of the compromise decree
by filing E.P.No.56 of 2006 before the Munsiff Court, Punalur.
Though notice was given, the judgment debtors remained
absent and they were set ex parte by Ext.P2 order dated
20.1.2007. When execution proceedings continued, it is seen,
vide Ext.P3 order, the counsel who appeared for the judgment
debtors reported no instructions, which, prima facie indicate
WPC.31939/09 2
that after passing of the ex parte order in the execution
proceedings, the judgment debtors had entered appearance
through counsel. When Amin was deputed to execute the
decree, he reported of noncooperation by both sides, and
pursuant thereto, the decree holders again applied for
appropriate orders by the court for executing the decree. The
application so moved by the decree holders was allowed by the
court. Meanwhile, the present petitioner, one among the
judgment debtors, moved an application on the trial side for
setting aside the compromise decree contending that it is
vague, inscrutable and inexecutable and also that she was not
a signatory to the compromise decree. On the execution side,
another petition was moved challenging the execution of the
decree. The execution court, after considering the merit of
that petition, dismissed it vide Ext.P12 order. Propriety and
correctness of that order is challenged in the writ petition
invoking the supervisory jurisdiction vested with this Court
under Article 227 of the Constitution of India.
2. I heard the learned counsel for the petitioner. From
WPC.31939/09 3
the submissions made and also taking note of the facts and
circumstances presented, I find no notice to the respondents is
necessary, and, hence, it is dispensed with. Whatever be the
objections raised by the petitioner against the compromise
decree, it has to be taken note till date the petitioner has not
moved any application as contemplated by the rules for setting
aside the compromise decree as vitiated by fraud. Ext.P1(a)
would show that she had subscribed her signature in the
compromise. The court, which passed the compromise decree,
has to pass appropriate orders in the event of any challenge by
any of the parties that the compromise is vitiated by fraud or
illegality. Petitioner has moved Ext.P11 application at a
belated stage before the trial court is canvassed as a petition
moved as contemplated under sub-rule (3) of Rule 1 of Order
XXIII of the Code of Civil Procedure. But after going through
Ext.P11 order, prima facie it appears that what she had
canvassed is only ignorance of the compromise decree
advancing a case that her husband, who is a drunkard had
been influenced by the plaintiffs in the suit in fabricating a
compromise in the suit, and on the basis of which, the
WPC.31939/09 4
compromise decree happened to be passed. I do not want to
express any opinion on the merits of Ext.P11 application since
it is pending enquiry before the court. On the facts and
circumstances presented, this is not a fit case where visitorial
jurisdiction of this Court can be invoked for the reliefs
canvassed by the petitioner. Ext.P11 application moved by the
petitioner, needless to point out, has to be disposed by the
court in accordance with law. With the above observations,
the writ petition is closed.
S.S.SATHEESACHANDRAN
JUDGE
prp