Andhra HC (Pre-Telangana)
Mustyala Jagadeshwar And Others vs Mustyala Laxmi Bai And Others on 3 February, 2000
Equivalent citations: 2000(2)ALD304, 2000(2)ALT558, 2000 A I H C 2325, (2000) 2 ANDHLD 304, (2000) 2 ICC 446, (2000) 2 ANDH LT 558
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. These two CRPs., can be disposed of by a common order since they arise out of the same suit. CRPNo.4112 of 1999 is directed against the order setting aside the compromise decree dated 7-9-1988 passed in the suit whereas the other CRP is directed against an order impleading the first respondent herein as a party to the suit.
2. The first respondent is the mother of respondents 2 to 5. Respondents 2 to 5 filed the suit against the petitioners herein and another for partition of the plaint schedule properties. The suit was filed on 1-9-1988. On 7-9-1988 a compromise was arrived at between the parties. In terms of the said compromise a decree was passed for partition of the suit properties between the plaintiffs and the defendants. The first respondent, who was not a party to the suit, filed 1A No.76 of 1989 to set aside the compromise decree dated 7-9-1988 claiming that she is entitled to items 17 to 23 of the plaint schedule which are here separate properties and that the compromise decree is collusive and it is not valid and binding on her. She also filed IA No,77 of 1989 to implead her as a party to the suit. Respondents 2 to 5, who are the sons of the first respondent, did not oppose the said applications and they remained ex parte. The applications were resisted by the petitioners herein contending that the compromise decree dated 7-9-1988 was a final decree by which the suit was completely disposed of and nothing remained to be done in the suit and as such the two applications filed by the first respondent are not maintainable and that the remedy ofthe first respondent was only to file a separate suit to agitate her rights if any. It was also contended that all the three widows of Venkatramaiah including the first respondent herein relinquished all their rights in the suit properties and executed documents dated 24-8-1988 and 26-8-1988 (which were marked as Exs.Bl and B2) and the First respondent is, therefore, not entitled to claim any rights in the suit properties or question the compromise decree passed in the suit.
3. Both parties adduced oral and documentary evidence. The lower Court, by the impugned orders dated 6-8-1999 allowed the applications filed by the first respondent holding that the compromise decree dated 7-9-1988 is only a preliminary decree and as such the suit must be deemed to be pending and the first respondent is, therefore, entitled to come on record and agitate her rights. Accordingly the lower Court set aside the compromise decree and directed both parties to proceed with the suit.
4. Sri T. Veerabhadraiah, the learned Counsel for the petitioners has raised the following contentions:
(1) The compromise decree dated 7-9-1988 is a final decree which completely disposed of the suit and nothing more remains to be done in the suit. As such IA No.76 of 1989 filed by the first respondent to implead herself as a party to the suit is not "' maintainable and it is liable to be dismissed.
(2) Consequently IA No.77 of 1989 to set aside the compromise decree is also liable to be dismissed and the remedy of the first respondent is only to file a separate suit to work out her rights if any.
(3) In view of Exs.Bl and B2 under which the first respondent relinquished all her rights in the suit property she has no subsisting right and she is, therefore, not entitled to file the instant applications or even to file a separate suit.
(4) Even though both parties have adduced oral and documentary evidence in this behalf, the lower Court failed to consider the same and it did not record any finding whatsoever with regard to the truth and validity of Exs.Bl and B2. For this reason also, the orders passed by the lower Court are unsustainable.
5. On the other hand, Sri Vedula Srinivas, the learned Counsel appearing for the first respondent, has contended that the lower Court was perfectly correct in holding that the compromise decree dated 7-9-1988 is only a preliminary decree. He pointed out that in the decree itself it is described as a preliminary decree and in the judgment also the Court directed the grant of a preliminary decree only. He also pointed out that the compromise decree covered only some of the suit properties and there are some more properties which are not included in the decree and, therefore, the suit must be deemed to be still pending. The details of such properties remaining are set out in Para 7 of the counter-affidavit filed on behalf of the respondents. The learned Counsel further contended that both parties have, in fact, understood and treated the decree as a preliminary decree only and on that basis they have subsequently initiated several proceedings before the civil Court as well as before the revenue authorities. It is stated that the petitioners herein filed OS No.27 of 1991 on the file of the Vacation Civil Judge, Nizamabad, against respondents 2 to 5 for permanent injunction restraining them from alienating the properties on the ground that the compromise decree dated 7-8-1988 is only a preliminary decree and a final decree is yet to be passed and they have also obtained a temporary injunction in IA No.129 of 1991 in the said suit. Similarly respondents 2 to 5 filed OS No.48 of 1989 on the file of the District Munsif, Yellareddi, for injunction against the petitioners restraining the petitioners from interfering with the possession of respondents 2 to 5 on the plea that it was a final decree. In that suit the petitioners herein contended that it is only a preliminary decree and so injunction cannot be granted in IA No. 166 of 1989. Accepting the said contention of the petitioners the said Court refused to grant injunction in favour of the respondents and the application for temporary injunction 1A No.166 of 1989 was dismissed by order dated 3-8-1989. Reference is also made to some other proceedings including WP No.988 of 1994 where the petitioners herein are said to have taken the stand that it is only a preliminary decree.
6. On the other hand, Sri Veerabhadraiah, the learned Counsel for the petitioners has drawn my attention to some other proceedings where respondents 2 to 5 are alleged to have taken the stand that the decree was a final decree by which the suit was completely disposed of and nothing more remained to be done.
7. However, the said orders referred to by the learned Counsel for both sides are not brought on record in the lower Court as they were not filed or exhibited. The lower Court had, therefore, no occasion to consider the same. It is clear from the above contentions that both parties have taken inconsistent pleas from time to time to suit their convenience. Whatever be the stand taken by them, it is primarily for the Court to decide the question whether the decree is a final decree by which the suit has been completely disposed of or whether it is only a preliminary decree and the suit must be deemed to be still pending. This is a question which primarily depends on the terms of the decree. The label or nomenclature given to it may not be decisive of the question. In Sethupathi v. Secretary State, AIR 1926 Mad. 341, it is held that under Order 23, Rule 3 CPC, the Court is bound to pass the decree in terms of the compromise if it is legal and valid and it cannot add a party to the proceedings if the original parties terminated the suit by such a lawful compromise. It was further held in the said decision that if the suit was terminated lawfully by the original parties thereto, the Court cannot allow third parties to agitate their rights in the suit and if the third persons have any interest in the matter, their remedy is to file a separate suit. Even though the above decision was cited before the lower Court, it chose to place reliance on a decision of the Kerala High Court in AIR 1978 KLT 80, wherein it was held that clause 2 of Order 1, Rule 10 CPC does not exclude the possibility of a person being validly impleaded even after a preliminary decree is passed and that a person, who ought to have been impleaded or whose presence is necessary for proper adjudication of all the questions involved in the suit, had a right to be impleaded any stage of the proceedings i.e., until the final decree is passed. There can be no dispute about this legal proposition but the question, however, is whether the decree in the instant case is only a preliminary decree or a final decree by which the suit has been completely disposed of. The Court below failed to properly deal with this question and it proceeded on the assumption that the decree is only a preliminary decree. That apart, even though both parties have adduced oral and documentary evidence regarding the alleged relinquishment of her rights by the first respondent, the lower Court failed to consider or record any finding on the said question. Obviously if Exs.Bl and B2 are found to be true and valid, the question of the first respondent claiming any right in the suit properties or seeking to have the compromise decree set aside does not arise.
I am, therefore, satisfied that the impugned orders are not sustainable. They are, therefore, set aside.
8. Accordingly the CRPs., are allowed and the matter is remitted back to the lower Court for fresh disposal of the interlocutory applications filed by the first respondent in accordance with law and in the light of the observations made above.
9. The suit is an old suit of the year 1998. The lower Court is therefore, directed to dispose of the two IAs., as expeditiously as possible preferably within three months from the date of receipt of this order. There will be no order as to costs.