Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. ANIL KUMAR, J.
Thankamma, W/o. Late Kuttappan & Ors. - Appellants
Versus
Ponnamma W/o. Thankappan & Ors. - Respondents
R.S.A. No. 253 of 2021
Decided On : 27-07-2021
Code of Civil Procedure, 1908 - Section 89- Civil Procedure (Mediation) Rules, 2005- Rules 24 and 25- mandatory injunction- Mediation agreement - Dcree obtained by fraud- Fixation of boundaries- seeking a declaration with regard to the title and possession over the plaint 'B' and 'C' schedule properties - Whether a first appeal would lie against the impugned judgment and decree of the trial court or same is barred by Section 96(3) of the Code.
Finding of the Court:
Prohibition under Section 96(3) of the code would remain limited to the cases where the parties after complying with the procedure prescribed under Order XXIII Rule 3 of the Code called upon the trial court to pass a decree in a particular manner to which they had agreed to and the court acts accordingly - Party pleadings fraud must plead the precise nature of the fraud exercised as contemplated under Order VI Rule 4 of the Code. There are no specific pleadings in this regard. Further, the case was settled by way of mediation in accordance with rules - When Section 96(3) of the Code bars an appeal against the decree passed with the consent of parties, it goes without saying that such decree is valid and binding on the parties unless set aside in a process known to law. One such remedy available was filing an appeal under Order XLIII Rule 1(m). Under Order XLIII Rule 1(m), an order recording or refusing to record an agreement or satisfaction could be directly challenged by filing an appeal even before the final judgment is passed in the suit. At the same time, in cases where the decree was passed by the court with the consent of parties, no appeal would lie in view of the prohibition contained under Section 96(3) of the Code.
Result: Dismissed
JUDGMENT :
This appeal is directed against the judgment and decree dated 15.1.2021 in A.S.27 of 2020 of the District Court, Ernakulam (hereinafter referred to as 'the first appellate court') confirming the judgment and decree dated 18.3.2016 in O.S. No. 493 of 2011 of the Munsiff's Court, Muvattupuzha (hereinafter referred to as 'the trial court'). The appellants herein are the appellants in A.S.No.27/2020 and the plaintiffs No.1, 3 and 6 in O.S.No.493/2011. The parties are hereinafter referred to as 'the plaintiff' and 'the defendants' according to their rank in the trial court unless otherwise stated.
2. The suit was filed by the appellants and respondents 9 to 11 praying for a mandatory injunction directing the survey authorities to correct resurvey records in respect of Sy.No.36 of Block 3 in Kuttampuzha Village and seeking a declaration with regard to the title and possession over the plaint 'B' and 'C' schedule properties, fixation of boundaries and consequential permanent prohibitory injunction.
3. The case was referred for mediation and was settled between the parties. Consequently, mediation agreement under Section 89 of the Code of Civil Procedure (hereinafter referred to as 'the Code') read with Rules 24 and 25 of the Civil Procedure (Mediation) Rules, 2005 signed by the parties was returned to the court. The trial court decreed the suit in terms of the mediation agreement. The mediation agreement was formed as part of the decree. The plaintiffs 1, 3 and 6, who are the appellants in this appeal, filed first appeal before the first appellate court with an Interlocutory Application No.1/2020 in A.S.No.27/2020 for condoning the delay of 1417 days. By order dated 15.1.2021, the first appellate court dismissed the application for condonation of delay. Consequently, the appeal was also dismissed.
4. The order passed by the first appellate court deciding the appeal results in merger of the judgment of the trial court with that of the appellate court. A perusal of the operative part of the judgment would reveal that the judgment passed by the trial court stands superseded by the decree now passed by the first appellate court. The dismissal of an appeal on the ground of delay in filing the same has the effect of confirming the decree appealed against. It is a fact that a compromise decree passed by the trial court was challenged before the first appellate court.
5. An interesting question as to whether a first appeal would lie against the impugned judgment and decree of the trial court or same is barred by Section 96(3) of the Code arises for consideration in this Regular Second Appeal filed before this Court invoking its jurisdiction under Section 100 of the Code. Although there were 8 defendants in the suit, the mediation agreement was executed between the plaintiffs and the defendants 1 to 4. The terms of the mediation agreement (translated version) are as follows:-
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
