Vijayakumari & Anr. vs Kesavan Unnithan Damodharan Unnithan & Ors.

The compromise judgment rendered by this Court in R.F.A No.67/2017 is sought to be reviewed by the petitioners herein who are third parties to the proceedings.

The aforesaid R.F.A was filed against the final decree passed in O.S No.281/1983 of Sub Court, Karunagappally, in which the dispute was in between the Ochira Kshetra Bharana Samithi and two families by name Palliyambil Kudumbam and Aruvannoor Kudumbam to collect the ‘nadavaravu/kanikka’ (offerings to the temple) collected from the Kizhakke Aalthara/Kizhakke Kshethram (eastern shrine) of Ochira Parabrahma Temple. The petitioners herein claim to be the members of Palliyambil Kudumbam. The first review petitioner is said to be the daughter of the plaintiff in O.S No.620/1973 of Munsiff’s Court, Karunagappally, a suit instituted in connection with the same dispute. The second review petitioner claims to be the son of the sister of the plaintiff in the aforesaid suit. According to the petitioners, the compromise judgment rendered by this Court on 31.01.2024 in R.F.A No.67/2017 is vitiated due to the infraction of the legal requirements of Order XXIII Rule 3B of the Code of Civil Procedure. Another ground raised in support of the review is that there was non-impleadment of the legal representatives of the 5th and 6th defendants in O.S No.281/1983 while the said suit was pending before the Trial Court. According to the petitioners, the aforesaid two families come under the category of Sthani families and hence the succession of sthanam property is governed by Section 7(3) of the Hindu Succession Act which provides for per capita division among the members of the successors. Thus, it is contended that the compromise decree rendered in Regular First Appeal is vitiated due to the non-impleadment of all the successors of the deceased parties.

Heard the learned counsel for the review petitioners, the learned counsel for respondents 2 and 3 and learned counsel for respondents 4 to 7.

A review of judgment and decree, whether it has been rendered on the basis of compromise or after adjudication on merits, is governed by Order XLVII Rule 1 of the Code of Civil Procedure. As per the above provision of law, any person aggrieved by the judgment could seek review on the following grounds:

In the case on hand, the contention of the review petitioners is that the compromise judgment rendered by this Court is vitiated by error apparent on the face of record. The main challenge highlighted is the non-compliance of the requirements of Order XXIII Rule 3B of the Code of Civil Procedure. For the sake of convenience and easy reference, Order XXIII Rule 3B C.P.C is extracted hereunder:

The aforesaid provision governs the legal requirements to be followed when a compromise is entered in a representative suit. Sub Section (1) of Rule 3B of Order XXIII forbids agreement or compromise in a representative suit without the leave of the Court expressly recorded in the proceedings. Sub Section (2) mandates the issuance of notice by the Court to such persons as may appear to the Court to be interested in the suit. Admittedly, the present case is one instituted by following the requirements of Order I Rule 8 of the Code of Civil Procedure since numerous persons were interested in the subject matter. Thus, it comes under the category of representative suits for which the mandate of Order XXIII Rule 3B has to be followed. Now, the point to be looked into is whether the aforesaid two requirements of getting the leave of the Court expressly recorded in the proceedings and issuance of notice in a proper manner to the persons interested in the suit, have been complied. A reading of the judgment rendered by this Court on 31.01.2024 in R.F.A No.67/2017 would reveal that both the above requirements were scrupulously followed before deciding the lis on the basis of the compromise between the parties. The second paragraph of the judgment would reveal that the necessary paper publication was effected to make all persons interested in the subject matter to be aware of the compromise chalked out between the parties. The publication effected in Mathrubhumi daily would reveal that it was in conformity with the requirement to convey the move of the parties to have the case compromised, to all the persons interested in the subject matter. It is further revealed from the recitals in the aforesaid judgment that this Court had accepted the compromise and recorded the above acceptance in the judgment. Thus, the primary requirement of getting leave of the Court recorded in the proceedings has been duly complied in this case. Therefore, the challenge raised by the review petitioners against the non-compliance of the requirements of Order XXIII Rule 3B of the Code of Civil Procedure, is totally unsustainable.

As regards the other challenge about the non-impleadment of the legal representatives of some of the deceased defendants by the Trial Court, it has to be stated that the aforesaid objection is devoid of merit in view of the fact that the defendants contested the suit not in their individual capacity but as the representatives of the families to which they belonged. That being so, a challenge against the non-impleadment of the legal representatives of some of the defendants by the Trial Court cannot be raised at this stage in this review petition since it is seen that the compromise judgment has been rendered by this Court after ensuring that due notice has been given to all the persons interested in the subject matter. The contention raised by the review petitioners about the applicability of Section 7(3) of the Hindu Succession Act, is totally unsustainable since the issue involved is not with regard to the succession of the sthanam properties in between the shareholders of sthani families, but the question as to the entitlement of the Ochira Kshethra Bharana Samithi and two families mentioned above to collect the offerings received at the eastern shrine of that temple. If the petitioners have got any dispute with regard to the respective shares which they are entitled to get from the portion of the offerings found to have been set apart to the Palliambil Kudumbam and Aruvannoor Kudumbam, they have to institute a partition suit against the receivers of the share of offerings. At any rate, the petitioners cannot agitate an issue in the above regard in a review petition like this. Needless to say, the present review petition is devoid of merit.

In the result, the review petition is hereby dismissed.