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Judgment
S.P. Chaly, J.—1. Challenge in this Original Petition is against a common order passed by the Family Court, Thiruvananthapuram in I.A.
Nos. 2378/2014 and 1276/2015 in O.P. No. 970/2010. The petitioner herein is the 1st petitioner in I.A. No. 1276/2015 and 2nd respondent in
I.A. No. 2378/2014. The respondents herein are other parties in both the Interlocutory Applications.
Brief facts required for disposal of the Original Petition are that, the 1st respondent is the daughter of 2nd respondent who is the youngest
brother of petitioner. O.P. No. 970 of 2010 was filed by the 1st respondent (minor) represented by her uncle before the Family Court, seeking a
decree for past and future maintenance and monetary expenses from her father, the 2nd respondent herein, and further to declare that the partition
deed No. 1383/1996 of Perinad SRO executed by and between the petitioner and his siblings, who are respondents 2 to 4 herein, is not binding
on the 1st respondent and to pass an order of prohibitory injunction restraining the petitioner and his siblings from transferring, alienating or
encumbering the said property.
There was an order of interim injunction passed by the Family Court, vide; order dated 29.07.2010, restraining the petitioner and respondents 2
to 4 from alienating, encumbering or otherwise dealing with petition ''B'' schedule property, with respect to 1st respondent''s ''oodukur'' 1/4th right
over the same, until further orders, as evident from Ext. P2.
During the course of the trial, the parties before the Family Court have entered into a settlement as per Ext. P3 compromise petition, pursuant to
which Ext. P4 judgment was passed by the Family Court. As per the terms of Ext. P3 compromise the respondents 1 and 2 have voluntarily
surrendered all their right, interest and title in an extent of 3.39 Acres of land situated in Re-survey No. 497/2 and 498/1 of Vadasserikara Village,
Ranni Taluk, and that they will not raise any claim with respect to the right, interest or title in the said property as against the petitioner. The said
relinquishment was done by 1st and 2nd respondents who are the first party to the said compromise, on condition that the petitioner herein pays an
amount of Rs. 10 lakhs to them within six months from the date of the agreement and they have agreed to accept the same in full and final
settlement towards valid consideration for the said relinquishment, subject to other conditions mentioned in the compromise. Thus Ext. P4 decree
passed by the court below has become final.
Matters being so, respondents 1 and 2 filed I.A. No. 2378 of 2014 purportedly under Order XXIII, Rule 3 of the Code of Civil Procedure,
challenging the validity of Ext. P3 compromise and Ext. P4 judgment. The petitioner filed I.A. No. 1276 of 2015 only for the limited purpose of
vacating the ex parte interim injunction granted in I.A. No. 1721 of 2010, as per Ext. P2 order, so as to enable him to mortgage or pledge the
petition ''B'' schedule property for raising sufficient funds to pay the amounts due as per Ext. P3 compromise.
The Family Court considered both the aforesaid applications together and passed a common order keeping in abeyance I.A. No. 2378 of 2014
till disposal of I.A. No. 1276 of 2015 and stipulated certain conditions for allowing I.A. No. 1276 of 2015, as evident from Ext. P5. It is
challenging the common order passed by the Family Court as per Ext. P5, this Original Petition is filed. Exts.P6 and P7 are copies of I.A. Nos.
1276 of 2015 and 2378 of 2014, respectively.
The 1st respondent has filed counter affidavit refuting the allegations, claims and demands made in the Original Petition and also narrating the
background facts of the case and thus seeks to dismiss the Original Petition alleging that the petitioner had thoroughly failed to comply with the
compromise entered into by and between the parties based on which the decree is passed.
Heard; learned counsel for the petitioner and learned counsel for the 1st respondent.
The questions to be decided are: (1) whether in the nature of the compromise entered by and between the parties the petitioner is entitled to
vacate the order of Ext. P2 injunction as sought for in I.A. No. 1276 of 2015? and (2) whether the 1st respondent herein is entitled to challenge
the compromise decree passed by the Family Court? As narrated above, as per the terms of the compromise, the 1st and 2nd respondents have
relinquished their rights and claims over plaint ''B'' schedule property admeasuring 3.39 Acres situated in Re-survey No. 497/2 and 498/1 of
Vadasserikara Village, Ranni Taluk in Pathanamthitta District, and all their claims and demands subject to condition that the petitioner herein should
pay an amount of Rs. 10 lakhs. As per clause (2) of the compromise, the 1st and 2nd respondents have also agreed that they have no objection to
the petitioner herein or his legal-heirs or successors in interest or any loanees or banks or other financial institutions extending any commercial
advance by way of security or as cash or against encumbering the said property by sale or lease or mortgage by the petitioner herein or his legal
heirs or assignees. That apart, respondents 1 and 2 have also relinquished their challenges against the registered Partition Deed No. 1383/1996 of
Perinad S.R.O. The 1st and 2nd respondents have also agreed that they will not bring any manner of legal encumbrance through court of law etc.
against the said 3.39 Acres of property and further that they will not claim any ''oodukur'' right or any money by way of compensation for
maintenance or future maintenance or share for the 2nd respondent or posthumously after him by the 1st respondent or through her mother
''Sureshithakumari'' in the said property. As per clause (6) of the compromise agreement, the respondents 1 and 2 have expressed their no
objection in vacating the order of injunction existing as per Ext. P2, over the plaint ''B'' schedule property, for the purpose of enabling the petitioner
herein to raise the money of Rs. 10 lakhs, agreed to be paid by them to respondents 1 and 2, within three months from the date of the said
compromise.
Further it is important to note that, as per clause (7) of the agreement, if the said amount of Rs. 10 lakhs is not paid within the said time limit of
three months, the order of injunction which is existing over the property shall be revived and the encumbrance made if any will be subject to the
claims of the 1st party which are raised by them in the case. As per clause (8) a time limit of three months was fixed from the date of filing of the
agreement to pay the aforesaid amount of Rs. 10 lakhs, without any interest. It is thus taking into account of the terms of Ext. P3 compromise that
the compromise decree was passed by the Family Court. However, while passing Ext. P4 judgment, clause (7) of Ext. P3 compromise was
excluded from the decree, specifically.
Contention advanced by the petitioner against Ext. P5 order is that, the same is perverse and highly irregular and the same had resulted in
modifying Ext. P4 compromise decree, and therefore vitiated under law. It is also contended that the court below has no jurisdiction to entertain an
application on the original side for setting aside a compromise decree passed under Order XXIII, Rule 3 of the Code of Civil Procedure, and the
remedy if any available to the respondents 1 and 2 lies elsewhere. It is also contended that, without stipulating any condition, the court below ought
to have allowed Ext. P6 application viz. I.A. No. 1276 of 2015 to vacate the ex parte injunction granted under Ext. P2 in order to enable him to
mortgage or to pledge ''B'' schedule property for raising sufficient funds to pay off the amount in terms of the compromise. It is also contended by
the learned counsel that, while entering into Ext. P3 compromise itself the respondents 1 and 2 were aware that the petitioner would be able to
raise the money only by encumbering or selling the property.
That apart it is contended by the petitioner that, the Family Court went wrong in imposing 6% interest to Rs. 10 lakhs, with effect from
30.03.2014, since the same interferes with the terms of compromise entered into by and between the parties. In other words, the contention is
that, the Family Court was not right in imposing the condition of payment of 6% interest for allowing I.A. No. 1276 of 2015, since the same was
not the term of compromise entered into by and between the parties. That apart it is contended that, when a decree is passed by the Family Court
on terms of the compromise entered into by and between the parties, at no point of time the Family Court can alter the said compromise, especially
when respondents 1 and 2 have an efficacious remedy of executing the decree against the petitioner. Therefore, the counsel contends that Ext. P5
order suffers from illegality, irrationality, impropriety and jurisdictional error which is liable to be interfered by this Court, by exercising the
supervisory power conferred on it under Article 227 of the Constitution of India.
On the other hand, learned counsel for the 1st respondent contended that the petitioner is protracting the matter indefinitely with the malafide
intention of avoiding Ext. P4 compromise decree passed by the Family Court. Learned counsel also contended that since the petitioner had failed
to pay the amount as undertaken in the compromise agreement, the compromise itself has become nullity, in terms of the provisions of the Indian
Contract Act. Therefore the Family Court was vested with enough powers to set aside the decree accordingly, is the contention. It is also
contended that 1st and 2nd respondents are put to innumerable difficulties and loss due to the improper, illegal and unfair conduct on the part of
the petitioner and thus the decree passed by the Family Court in terms of the compromise has become redundant and therefore the 1st respondent
was justified in moving Ext. P7 application seeking to set aside Ext. P4 compromise decree. Learned counsel has invited our attention to Rule 3A
of Order XXIII CPC to contend that the 1st respondent has no other alternative than to seek to set aside the decree since a separate suit is barred
under Rule 3A. Therefore the counsel contends that the order passed by the Family Court imposing the condition of 6% interest to Rs. 10 lakhs
from the date of decree to lift the attachment, is valid and no interference is called for.
Having considered the rival submissions and on a perusal of the pleadings and the documents produced, the question to be considered is
whether the Family Court is entitled to impose a pre-condition for allowing Ext. P6 Interlocutory Application seeking to lift the injunction ordered
as per Ext. P2. We have already narrated the terms and conditions entered into by and between the parties as per the compromise agreement, in a
nutshell. By the said compromise, on payment of Rs. 10 lakhs within a period of three months from the filing of the compromise agreement before
the court, the 1st and 2nd respondents will not be having any claim over the plaint ''B'' schedule property. Even though as per clause (7) of Ext. P3
compromise a revival of Ext. P2 injunction was agreed upon, in the event of failure, as per Ext. P4 decree the said clause (7) was specifically
excluded. Therefore, as per the decree there is no stipulation with respect to revival of the order of injunction, if the amount is not paid by the
petitioner within a period of six months from the date of the agreement. In that circumstances, if the petitioner has not paid the amount as
undertaken in the compromise agreement, the only remedy available to the 1st and 2nd respondents is to seek execution of the compromise
decree. By virtue of clause (8) of the compromise agreement, if the amount of Rs. 10 lakhs is not paid within a period of three months, the 1st
respondent is entitled to claim interest, since as per the said clause, interest is prohibited only up to the period of three months.
Therefore, on a reading of Ext. P3 compromise agreement as a whole, the 1st respondent is entitled as of right to execute the decree after the
period of six months from the date of agreement and to claim interest when the amount was not paid within a period of three months. We are
unable to comprehend the argument advanced by learned counsel for the 1st respondent that since the terms of the compromise has become
inoperative and redundant, the decree passed by the court below need to be set aside as null and void. We have gone through the explanation
provided under Rule 3 of Order XXIII and find that the terms of compromise are subject to the provisions of the Indian Contract Act. But we do
not find any provision under Order XXIII enabling the 1st respondent to set aside the decree passed by the court below on the ground that the
terms of the compromise has become redundant and therefore the decree can be set aside. It is also important to note that the 1st respondent does
not have a case that the terms of the contract are void in terms of the provisions of the Indian Contract Act.
In view of the foregoing discussions, we are of the considered opinion that the Family Court was not correct in imposing a condition to lift Ext.
P2 order of injunction. The application for lifting the injunction ought have been considered by the court in accordance with the terms of the
compromise decree. In our considered view the court was bound to allow the same, without imposing any condition, in terms of the compromise
entered into by and between the parties. Therefore we have no hesitation to hold that the order passed by the Family Court imposing a pre-
condition for payment of 6% interest for allowing I.A. No. 1276 of 2015, cannot be sustained. Therefore the same is hereby set aside.
So far as I.A. No. 2378 of 2014 is concerned, same is filed to set aside Ext. P4 compromise decree, which according to us, is a doubtful
exercise ventured by the 1st respondent. In order to substantiate the said exercise, the prime contention advanced by the 1st respondent is that: (1)
due to failure on the part of the petitioner to pay the amount of Rs. 10 lakhs as undertaken, the terms of the compromise as a whole has become
defunct and redundant, (2) under Rule 3A of Order XXIII, filing of a separate suit challenging the compromise decree is prohibited and therefore
the only course open to the 1st respondent is to seek to set aside the same by filing an interlocutory application, (3) the 1st respondent minor is put
to severe consequences due to the non-compliance of the compromise decree and (4) since the terms of compromise have become inoperative the
1st respondent is entitled to seek for setting aside the same.
In view of the arguments so advanced, we feel that a discussion on Order XXIII, Rules 3 & 3A of the Code of Civil Procedure would not be
inappropriate. Rule 3 of Order XXIII is dealing with a situation of lawful agreement or compromise entered into by and between the parties in
writing and signed by them. On a reading of the said provision, it is clear that merely because a compromise is entered into by and between the
parties, unless and until it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or
compromise, a compromise decree need not be passed by the court. Explanation thereto, as we have stated earlier, provides that the agreement or
compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of this rule.
Therefore, it should be proved to the satisfaction of the court that the agreement or compromise is lawful within the meaning of the Rule,
particularly in the context of provisions of the Indian Contract Act, 1872. Then only the court can take notice of compromise by and between the
parties and a decree can be passed accordingly.
Yet another point advanced by learned counsel for the respondent is that, since Rule 3A of Order XXIII bars a fresh suit to set aside a
compromise on which a decree is based, the petitioner is at liberty to file an interlocutory application to set aside the same. In our view, when a suit
itself is barred, seeking to set aside a lawful decree in an interlocutory application is not at all maintainable on the premise that the compromise was
not lawful.
Therefore, the above said provisions makes it clear that, a court is not bound to pass a decree in terms of the compromise entered into by and
between the parties, unless and until it is satisfied that the terms of compromise are not illegal, void or against any provisions of law, or settled
principles of law or the terms of compromise are not contradictory to achieve any result in terms of the agreement. The finest example is the
exclusion of clause (7) of the compromise from Ext. P4 decree. When such a compromise decree is passed it is binding on the parties, unless it is
vitiated by inherent defects like fraud, misrepresentation etc. in terms of provisions of any of the statutes. When, once such a compromise decree is
passed by the court, the decree holder is not entitled to challenge validity of the compromise decree at a later point of time on the ground that the
other party to the compromise have failed to execute its terms. When a decree is passed by a court of law taking into account the terms of
compromise, it can only be legally presumed that the terms of compromise entered into by and between the parties was legal and same does not
suffer from any legal infirmity, much less the provisions of the Indian Contract Act. After appreciating the terms of the compromise and the decree
passed by the Family Court, we are of the considered opinion that that there are no circumstances existing in order to seek any interference with
Ext. P4 decree passed by the Family Court.
Therefore, the Original Petition is allowed by setting aside Ext. P5 order passed by the Family Court and by allowing I.A. No. 1276 of 2015.
I.A. No. 2378 of 2014 is herewith dismissed. However, 1st respondent will be at liberty to execute the decree in terms of the compromise. If the
petitioner seeks settlement in terms of Ext. P4 compromise decree, the Family Court will be at liberty to consider such settlement put forth by the
petitioner and to pass appropriate orders accordingly.
We are also sure that the Family Court will take speedy steps to execute the decree, if and when any execution petition is filed by the 1st
respondent.