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2012 Supreme(Ker) 236

High Court of Kerala
S.S. SATHEESACHANDRAN
Joy Francis & Another
Versus
Joseph Netto & Others
OP.(C).No.3491 of 2011 (O)
Decided On : 12-03-2012

Advocates Appeared:
For the Petitioners:B. Suresh Kumar, Advocate.
For the Respondents:R1, K.G. Bindu, Smt. T.S. Maya (Thiyadil), R3, Smt, Rekha Nair, Advocates.

Headnote:

Civil Procedure Code, 1908 - Order.XXIII Rule. 3A - Consent/Compromise decree - Persons who are not parties to the suit and decree - Remedy available to assignee of property is to approach the Court which recorded the compromise and not by a separate suit impeaching the validity of the compromise decree - Bar under R.3A of O.XXIII is applicable - Order under Challenged - Held, The transferee is as much bound by the decree, as if he was a party to the suit. As a transferee over the immoveable property covered by the lis in which any right to such property is directly and specifically in question, he puts himself in privity with the suit, and cannot be treated as a stranger. A transferee pendente lite is a representative in interest of the transferor who is a party to the suit, and as such is a person bound by the decree even if he was not made a party to the suit. So much so, the argument canvassed that petitioners are not parties to the suit or consent decree and therefore the bar under R.3-A of Order XXIII of the Code is inapplicable to them is devoid of any merit - The only remedy available to a party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and made the decree in terms of it, and to establish that there was no compromise, whatever be the grounds available to him to impeach such decree. Petitioners have filed a suit impeaching such decree, when no such suit is entertainable in view of the bar under O.XXIII R.3A of the Code - The execution court is bound to execute the decree as it is and it cannot entertain a challenge impeaching the validity of the compromise decree by a party bound by such decree. The application for stay of execution at their instance was not entertainable, and order dismissing such application by the learned Munsiff, though for different reasons as well, as stated above, is only to be upheld - Original petition is dismissed.

Judgment :

1. Original petition is filed seeking the following reliefs:

(i) To call for the entire records of E.A.No.347/2011 in E.P.No.189/2011 in O.S.No.125/2006 on the file of the Munsiff’s Court, Kollam and set aside Ext.P7 order and allow E.A.No.347/2011 in E.P.No.189/2011 in O.S.No.125/2006 on the file of the Munsiff’s Court, Kollam.

(ii) To call for the entire records of O.S.No.700/2011 on the file of the Munsiff’s Court, Kollam and direct the court below to consider the case as expeditiously as possible.

(iii) any other direction or order in the facts and circumstances presented in the case circumstances of the case.

2. Petitioners are the additional judgment debtors 3 and 4 in E.P.No.189/2011 in O.S.No.125/2006 on the file of the Principal Munsiff’s Court, Kollam. A compromise decree passed in the suit is being executed in the aforesaid execution petition by the 1st respondent/decree holder. Respondents 2 and 3 were the defendants in the suit. The 2nd respondent/first defendant has assigned the rights over her property plaint ‘B’ schedule involved under the compromise decree in favour of the petitioners and as such they have been brought in the execution proceedings as additional judgment debtors. Petitioners have a case that they had an agreement of sale over such property even before the compromise decree was entered into by the plaintiff and defendants in the suit on a reference made to the Lok Adalat. The petitioners obtained agreement of sale, according to them, after the commencement of the lis, but a few days before the compromise entered by the parties to the suit. Impugning the compromise decree based on the settlement entered by the plaintiff and defendants in the suit as vitiated by collusion and fraud, the petitioners/assignees have filed a suit as O.S.No.700/2011 before the Munsiff’s Court, Kollam for setting aside such decree. Pendency of such suit was canvassed to move an application under Order XXI Rule 29 of the Code of Civil Procedure (for short ‘the Code’), for stay of the execution proceedings arising from the compromise decree. The learned Principal Munsiff has dismissed that application vide Ext.P7 order, which is challenged in this original petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India.

3. Brief facts leading to the compromise decree, which is put in execution, can be stated thus:

Suit was one for a declaration of the plaintiff’s right of easement by prescription over a pathway and for injunction. The defendants in the suit are two sisters of the plaintiff, and all of them are the children of the original acquirer of the properties involved in the suit, an extent of 12 cents. That acquirer had settled the properties in favour of her children providing A schedule having an extent of 3 cents on the extreme southern portion to the plaintiff, and adjacent to it 3 cents to the 2nd defendant, and the rest, western 6 cents to the 1st defendant, described as ‘B’ schedule. Suit was files by the plaintiff to declare her right of prescriptive easement over ‘C’ schedule pathway described as having four feet wide, passing through B schedule property, for an injunction restraining the defendants from extending the compound wall on the western side of B schedule property, from interfering with the possession and enjoyment of the plaintiff and also from causing any obstruction in taking water from a well situate partly in ‘B’ schedule with the rest in an adjoining property described as ‘D’ schedule, or, from damaging the water pump installed in a kennel situate in ‘B’ schedule and water tank placed on the roof of that kennel, and from causing obstruction to and drawing of water through water pipes from such water tank to A schedule.

4. Resisting the suit claim, the defendants raised a counter claim for removal of the kennel, water pump and water tank situate in B schedule property passing a decree of mandatory injunction directing the plain
























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