Madras High Court
E.Ramu vs E.Krishnan on 5 January, 2010
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2010
CORAM:
THE HON'BLE MR.JUSTICE M.VENUGOPAL
C.R.P (NPD) No.2293 of 2008
and
M.P.No.1 of 2008
1.E.Ramu
2.E.Gopal
3.E.Kannan .. Petitioners
Vs.
1.E.Krishnan
2.E.Jayalakshmi
3.E.Amutha
4.Dhanalakshmi
5.Dhanapakkiam .. Respondent
Civil Revision Petition filed under Section 115 of Civil Procedure Code to set aside the order dated 21.04.2008 made in I.A.No.535 of 2007 in I.A.No.1519 of 1991 in O.S.No.275 of 1990 passed by the Principal Subordinate Judge, Salem.
For Petitioners : Mr.M.Venkatachalapathy
Senior Counsel for M/s.M.Sriram
For Respondent 1 : Mr.T.R.Mani
Senior Counsel for M/s.S.Kalyanaraman
For Respondent 2 : Given up
For Respondents
3 to 5 : Given up
*****
O R D E R
The Petitioners/Respondents 1 to 3/Plaintiffs have projected this Civil Revision Petition as against the order dated 21.04.2008 in I.A.No.535 of 2007 in O.S.No.275 of 1990 passed by the learned Principal Sub Judge, Salem in allowing the application filed by the 1st respondent/petitioner/4th plaintiff under Order 26 Rule 13 read with Order 23 Rule 3 and Section 151 of Civil Procedure Code praying to set aside the Compromise Decree passed in I.A.No.1519 of 1991 dated 17.12.1991 and consequently, to pass a fresh decree.
2.The trial court while passing orders in I.A.No.535 of 2007 dated 21.04.2008 has inter alia opined that 'on the date when the learned Judge who has delivered the judgment, has been in service and on that date, the learned Judge who has been on leave has signed in the said judgment, which cannot be accepted and therefore, the judgement delivered in I.A.No.1519 of 1991 in O.S.No.275 of 1990 dated 17.12.1991 is not to be accepted' and resultantly, set aside the final decree passed in I.A.No.1519 of 1991 dated 17.12.1991 based on the compromise application and allowed the I.A.No.535 of 2007 without costs.
3.The learned counsel for the Revision Petitioners/Respondents 1 to 3/ Plaintiffs submits that the impugned order dated 21.04.2008 in I.A.No.535 of 2007 in I.A.No.1519 of 1991 in O.S.No.275 of 1990 passed by the learned Principal Sub Judge, Salem in setting aside the Compromise Decree passed on 17.12.1991 is contrary to law and amounts to an improper exercise of jurisdiction resulting in miscarriage of justice and more over the trial court has set aside the Compromise Decree in an interlocutory application and that too after nearly 17 years and as a matter of fact, the 1st respondent/ 4th plaintiff is a practising Advocate at the time of Compromise Decree and in short, the whole approach of the trial court is a perverse one and added further, the 1st respondent/4th plaintiff has filed a suit for the same relief and has withdrawn the same without getting leave or liberty to file the present application.
4.Continuning further, the learned counsel for the petitioners contends that mere defects in the compromise petition cannot be a ground to annul the compromise and the consequential decree passed in the earlier partition suit and the trial court has committed an error in brushing aside the statement placed before it that the 1st respondent/ 4th plaintiff has adequately been compensated with the payment of Rs.5,00,000/- at the time of compromise and all the more, the trial court has exceeded its jurisdiction in making an enquiry as to what transpired on the date of compromise/ passing of final decree, even though the application for setting aside the compromise petition itself is not maintainable and when there is no solid allegation of fraud or proof of such an allegation, then the trial court ought not to have disturbed the Compromise/Final Decree passed in the year 1991 relating to a partition matter and further more, the reason ascribed by the trial court that there has been no signature and therefore, the learned Judge cannot deliver the judgement, by itself may not be factually correct, but these aspects of the matter have not been considered by the trial court in real perspective, which has resulted in serious hardship and miscarriage of justice and therefore, prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice.
5.Expatiating his submissions, the learned counsel for the petitioners submits that in the Agreement Document dated 01.11.1989 between the four sons of Elumalai Gounder viz., (1)E.Ramu (2)E.Gopal (3)E.Kannan (4)E.Krishnan and (5)daughter E.Jayalakshmi, the properties allotted to the share of the 1st respondent/ 4th plaintiff are described in 'D' Schedule and the item No.5 of the property in 'D' Schedule in Survey No.5 in Block 9 measuring an extent of 3522 Sq.ft of land belongs to Salem, Sevvaipettai, Sri Kanniga Parameswari Devasthanam and the then Learned Principal Sub Judge, Salem, Thiru.D.Dhandapani recorded the compromise and signed and later Thiru.P.Ramakrishnan, Learned Additional Sub Judge, Salem has signed and in I.A.No.1519 of 1991 in O.S.No.275 of 1990, the compromise petition under Order 23 Rule 3/4 and Section 151 of Civil Procedure Code filed by the revision petitioners 1 to 3 and the 1st respondent/ 4th plaintiff before the learned Principal Sub Judge, Salem, a plea has been made for treating the compromise as a final decree to be passed and the I.A.No.1519 of 1991 dated 16.12.1991 and on that day, the parties have been present and they have admitted the terms of compromise, etc. and on 16.12.1991, the Sheristadhar of the Court has been directed to check up and put up as to the payment of Court Fees if any and on 17.12.1991 an endorsement has been made by the Sheristadhar in I.A.No.1519 of 1991 to the effect that "Court Fee of Rs.100/- has been paid by D1 for the share allotted to her as per the terms of compromise is correct" and hence the learned Principal Sub Judge, Salem has recorded the compromise on 17.12.1991 and the 1st respondent/ 4th plaintiff has filed O.S.No.214 of 2002 on the file of learned Additional Sub Judge, Salem praying for a decree to be passed declaring that the final decree passed in I.A.No.1519 of 1991 in O.S.No.275 of 1990 is void, having been obtained by fraud at the instance of D1 to D3 therein for reopening of partition and also seeking a direction for a fresh partition to be made in respect of first item of properties barring the properties belonging to Sri Kanniga Parameswari Amman Devasthanam into six equal shares and allot one such share to him separately with possession by appointing a Commissioner to the effect to divide by metes and bounds etc. and later on the suit has been dismissed as withdrawn on 13.11.2007 and more over Thiru. P.Ramakrishnan, learned Additional Sub Judge, Salem has signed the final decree on 17.12.1991 for learned Principal Sub Judge, Salem in O.S.No.275 of 1990 which runs to the following effect "I.A.1519/91 Compromise petition is recorded. D1 also paid court fee of Rs.100/- for allotment of his share. Hence, final decree is passed in terms of said compromise petition. No costs. Non Judicial Stamp paper in four weeks" will not anyway affect the final decree passed on 17.12.1991 and as a matter of fact, the compromise recorded in I.A.No.1519 of 2009 in O.S.No.275 of 1990 dated 16.12.1991 has been signed by a proper person (proper Judge) and the proceedings in O.S.No.275 of 1990 dated 17.12.1991 have been drawn in the name of Thiru D.Dhandapani, learned Principal Sub Judge, Salem and the signature obtained from Thiru. P.Ramakrishnan, learned Additional Sub Judge, Salem who has signed for learned Principal Sub Judge, Salem is no legality and the date of judgment has never been altered though the signature has been put subsequently and in filing of I.A.No.535 of 2007, there is a bar in law because when the suit O.S.No.214 of 2002 has been withdrawn earlier on 13.11.2007.
6.Furthermore, the 1st respondent/ 4th plaintiff has not obtained the liberty of the Court to file another interlocutory application and in law to set aside the Compromise Decree/ Consent Decree passed in O.S.No.275 of 1990 only a suit lies and a Compromise Decree obtained by the parties cannot be set aside merely by way of filing of interlocutory application and as per Order 23 Rule 3(A) of Civil Procedure Code evidence will have to be recorded and the factual issues in whole cannot be decided in a summary manner.
7.The learned counsel for the petitioners cites the decision of Honourable Supreme Court Surendra Singh and others v. State of U.P. AIR 1954 SUPREME COURT 194 wherein it is observed as follows:
"As soon as the judgment is delivered, that becomes the operative pronouncement of the Court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its sub-sequent authentication, AIR 1938 PC 292 (295), Ref."
He also further observed that "A judgment is the final decision of the Court intimated to the parties and to the world at large by formal "pronouncement" or "delivery" in open court. It is a judicial act which must be performed in a judicial way. The decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. This is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in @page-SC195 motion. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the Court. That is what constitutes the "judgment"
Up to the moment the judgment is delivered Judges have the right to change their mind. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. 9 WR 1 (5, 13, 30) (FB), Appr.
Where, therefore, of the two Judges of the High Court who hear an appeal in a criminal case, one purporting to write a joint judgment, prepares a judgment, signs it and sends it to the other Judge but before it is delivered, dies, then the judgment, if delivered by the other Judge, is not a valid judgment".
8.He also relies on the decision Puvvada Narasimhamurthy v. Gadi Satyavathi and others AIR 1976 ANDHRA PRADESH 400 wherein it is observed thus:
"Under O.20, R.1 the Court after the case has been heard, shall pronounce judgment in open court by dictation to Shorthand Writer, wherever it is permissible. It bears the date on which it is pronounced. The date of the judgment is never altered by the date on which the signature has been put subsequently. The date of the decree under O.20, R.7, C.P.C. would also be the date on which the judgment was pronounced. It is therefore clear that under the C.P.C. stress is laid upon the pronouncement or delivery of the judgment as a judicial act, which has got legal effect. AIR 1966 All 221 (FB), Dissented from; AIR 1954 SC 194, Relied on."
9.On the side of the petitioners, attention of this Court is drawn to the decision Ranga Reddy Associates & Others v. K.Shapoor Chenai & others CDJ Law Journal 2004 APHC 532 at paragraph 71 wherein it is observed hereunder:
"Code of Civil Procedure, 1908 Order XXXIII Rule 2 Compromise Decree Opposition by one of the Defendants The Court below has recorded the submission of the learned counsel for the first defendant that the counsel for the first defendant has orally opposed the compromise stating that the delay caused financial drain to him and now wants to have a fresh compromise taking the matter to the arbitration. The appellants have not chosen to file affidavit of the learned counsel. But, in view of Order 23 Rule 3 of CPC that once compromise takes place it has to be implemented unless there is a fraud. Since the allegation of fraud has not been attributed to the plaintiffs and considering the fact that the first defendant enjoyed the benefit, the opposition made by the first defendant to the compromise cannot be accepted. The Court below by taking all these factors into consideration decreed the suit in terms of compromise, which they filed in IA No.399 of 1999."
10.Added further, on the side of the petitioners reliance is placed on to the decision of this Court Govindarajan and others v. K.A.N.Srinivasa Chetty and others AIR 1977 MADRAS 402 wherein it is held as follows:
"If a compromise was in fact arrived at though it may be voidable at the instance of one of the parties on the ground of fraud or misrepresentation, when the compromise is filed under O.23, R.3 with a request to record the same by the opposite party, the Court could not go into the question of fraud or undue influence. The only ground on which the Court could refuse to record the compromise is on the ground that the compromise itself is opposed to public policy. Therefore the party could not be permitted to question the compromise on the ground of fraud or undue influence. The compromise could not also be questioned on the ground that the Advocate had executed the compromise on behalf of his client as the Advocate always has an implied authority to enter into a compromise on behalf of his client unless there is written prohibition or limitation. AIR 1950 Mad 728 and (1976) 1 Mad LJ 136 and AIR 1975 SC 2202, Foll."
11.The learned counsel for the petitioners cites decision Gosto Behari Pramanik v. Smt.Malati Sen and others AIR 1985 CALCUTTA 379 at page 380 wherein it is held that "a Compromise Decree under Order 23 Rule 3 of Civil Procedure Code can only be set aside in separate suit or proceedings on the ground that the consent has been obtained by fraud or coercion and such consent or Compromise Decree resulted in serious and substantial justice".
12.The learned counsel for the petitioners seeks in aid of the decision of this Court Kuppuswami Reddi and another v. Pavanambal AIR (37) 1950 Madras 728 wherein it is observed as follows:
"Under O.23, R.3 of the Code compromise cannot be attacked by the allegations that it is a voidable compromise brought about by fraud, undue influence and duress. Provided the compromise is lawful, that is not contrary to law, the Court is obliged to record it. The mere fact that it may be voidable is no reason for a Court refusing to record it. A.I.R (23) 1936 Mad. 347 and A.I.R. (22) 1935 All.137, Rel.on."
13.Moreover, on the side of the petitioners reliance is placed on to the decision Sh.Krishan Mohan Singh, v. Sri Chand Gupta and others AIR 1993 DELHI 365 at page 368 wherein it is held as follows:
"Learned counsel for the respondent has also argued that the compromise has not been signed by Jaswant Singh and thus as all the parties have not signed the compromise, the same could not be given effect to. There is no merit in this contention. No adverse order was being made on the basis of the compromise against Jaaswant Singh, so even if Jaswant Singh, who was not contesting the matter, had not signed the compromise, it would not mean that the compromise cannot be enforced between the contesting parties."
14.Per contra, the learned counsel for the 1st respondent submits that (1st respondent in this Civil Revision Petition) has figured as 4th plaintiff in O.S.No.275 of 1990 on the file of learned Principal Sub Judge, Salem and in that suit a compromise has been recorded and the four plaintiffs in O.S.No.275 of 1990 are sons of Elumalai Gounder and the 2nd defendant one Amudha has not been married and the other younger sister has been married and no property has been given to the eldest sister and defendants no.3 and 4 are said to have given up their rights in the property and they have taken Rs.25,000/- each, but the date of document has been mentioned and the same has not been produced before the trial court and the 1st respondent has filed earlier the suit O.S.No.214 of 2002 on the file of learned Additional Sub Judge, Salem praying for the relief of setting aside the Compromise Decree in O.S.No.275 of 1990 on the file of learned Principal Sub Judge, Salem and after the amended Code of Civil Procedure, a suit to set aside the Compromise Decree in O.S.No.275 of 1990 will not lie and only an interlocutory application will lie and therefore, I.A.No.535 of 2007 has been filed by the 1st respondent/ 4th plaintiff before the trial court praying for the relief of setting aside the Compromise Decree.
15.That apart, if there is a partition in the year 1998, as alleged, why the suit should be filed in the year 1990 and the suit in O.S.No.275 of 1990 has been filed on 21.03.1990 and that a compromise application viz., I.A.No.1519 of 1991 has been filed by the four plaintiffs in suit O.S.No.275 of 1990 and that on 17.12.1991, a Compromise Decree has been passed and on 22.04.2002 O.S.No.214 of 2002 has been filed by the 1st respondent/ 4th plaintiff praying for the relief of declaration that the final decree passed in I.A.No.1519 of 1991 in O.S.No.275 of 1990 is void, having been obtained by fraud at the instance of D1 to D3 etc. and later, the suit has been withdrawn and in the Compromise Decree in O.S.No.275 of 1990 Thiru.T.R.Mani, learned counsel for the 1st defendant has not signed but the 1st defendant has signed and the 2nd defendant Amudha who says that she does not want properties, her lawyer has signed but D3 and D4 have not signed in the compromise but D3 and D4 have been given up and in a suit for partition the concept of giving up any party may not arise and giving up the parties is a make belief arrangement and for relinquishment of properties release deed dated 14.11.1973 has not been produced and a fraud has been played upon the trial court and how can the learned Additional Sub Judge, Salem Thiru.P.Ramakrishnan can sign in the decree in O.S.No.275 of 1990 dated 17.12.1991 when the learned Judge who passed the judgment viz., Thiru.D.Dhandapani, learned Principal Sub Judge, Salem has been very much present on 17.12.1991 and therefore Ex.R5 order dated 17.12.1991 in O.S.No.275 of 1990 is shrouded on suspicion and in fact there cannot be a Decree without a Judgment and Ex.R6 is the decree dated 17.12.1991 passed in O.S.No.275 of 1990 and though Ex.R5 decree in O.S.No.275 of 1990 is in the name of Thiru.D.Dhandapani, learned Principal Sub Judge, Salem but on the reverse side of the decree Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem has signed for learned Principal Sub Judge, Salem and on 17.12.1991, admittedly, the learned Additional Sub Judge, Salem Thiru.P.Ramakrishnan has been on Casual Leave and Ex.R5 decree in O.S.No.275 of 1990 is a procured document, which has been accepted by the trial court and placing reliance on Ex.R5 decree in O.S.No.275 of 1990 dated 17.12.1991 will amount to fraud being played on a Court of law no one has been examined on either side as witness in I.A.No.535 of 2007 in O.S.No.275 of 1990 on the file of learned Principal Sub Judge, Salem and on 17.12.1991 none other parties have been present and only on 16.12.1991 parties have been present and also that learned counsel for D2 has not signed in the compromise D4 and D5 have not signed and also their lawyers have not signed and if there is a muchalika for partition then why a suit has to be filed in O.S.No.275 of 1990 and indeed both Thiru.D.Dhandapani, learned Principal Sub Judge, Salem and Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem have been holding their respective offices, Order 20 Rule 8 of Civil Procedure Code speaks of procedure when a learned Judge has vacated office.
16.It is the further contention that in the instant case though a decree in O.S.No.275 of 1990 dated 17.12.1991 stands in the name of Thiru.D.Dhandapani, learned Principal Sub Judge, Salem but signed by the Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem for learned Principal Sub Judge, Salem, the successor and that Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem cannot sign and Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem is not a successor to Thiru.D.Dhandapani viz., the learned Principal Sub Judge, Salem and when Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem has been on Casual Leave on 17.12.1991 as per the 'A' Diary extract of the Additional Sub Court, Salem, he cannot sign in the decree in Ex.R5, the decree in O.S.No.275 of 1990 and the same is not a valid one and preceding a decree there must be a judgment and there is no judgment in the instant case on 17.12.1991 in O.S.No.275 of 1990 and the 1st respondent has been duped and in law a Decree cannot come first and further the present case is a classic example where a learned Additional Sub Judge, Salem Thiru.P.Ramakrishnan has not been present in Court on 17.12.1991 (and that admittedly he has been on Casual Leave as seen from the 'A' Diary extract and reposting of cases from 17.12.1991 to various dates), but unfortunately, his signature has been obtained and therefore, the trial court has looked into the matter in threadbare and rightly allowed I.A.No.535 of 2007 on 21.04.2008 and the same need not be disturbed by this Court to prevent an aberration of justice.
17.The learned counsel for the 1st respondent cites the decision of Honourable Supreme Court Banwari Lal v. Smt.Chando Devi (Through L.R.) and another 1993 1 LW 203 at page 209 wherein it is held as follows:
'12.When the amending Act introduced a proviso along with an Explanation to R.3 of Order 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the Explanation to the Proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act...." shall not be deemed to be lawful within the meaning of the said Rule. In view of the Proviso read with the Explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even R.1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under Proviso to R.3 of O.23, or an appeal under S.96(1) of the Code, in which he can now question the validity of the compromise in view of R.1A of O.43 of the Code.
13.The application for exercise of power under Proviso to R.3 of O.23 can be labeled under S.151 of the Code but when by the Amending Act specifies that such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to R.3. It has been held by different High Courts that even after a compromise has been recorded, The Court concerned can entertain an application under S.151 of the Code, questioning the legality or validity of the compromise. Reference in this connection may be made to the cases. Smt.Tara Bai v. V.S.Krishnaswamy Rao, [AIR 1985 Karnataka 270]; S.G.Thimmappa v. T.Anantha [AIR 1986 Karnataka 1], Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh [AIR 1958 Patna 618]; Margal Mahton v. Behari Mahton [AIR 1964 Patna 483] and Sri Sri Iswar Gopal Jew v. Bhagwandas Shah [AIR 1982 Cal.12], where it has been held that application under S.151 of the Code is maintainable. The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties, (that Court) has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the Explanation to the Proviso to R.3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the court could have recorded such agreement or compromise on 27.2.1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of R.3, there was no option left except to recall that order.
14.Accordingly the appeal is allowed. The order passed by the High Court is set aside. In the circumstances of the case, there shall be no order as to costs.'
18.He also relies on the decision of the Honourable Supreme Court A.V.Papayya Sastry & others v. Government of A.P. & others 2007-4-L.W.139 at page 150 wherein in paragraph 21,23,24,25 it is held as follows:
'It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.
It has been said; Fraud and justice never dwell together (fraud et jus nun-quam cohabitant; or fraud and deceit ought to benefit none (fraus et dolus nemini partocinari debent).
Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.' Also in the aforesaid judgment at paragraph 37 it is observed thus:
'The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior.'
19.The learned counsel for the 1st respondent brings it to the attention of this Court, the decision of the Honourable Supreme Court T.Vijendradas & Another v. M.Subramanian & Others 2008-1-L.W. 1 at special page 12 wherein at paragraph 23 it is held hereunder:
"We would assume that the courts below proceeded on a wrong premise that Order XXI.Rule 92(4) is not attracted, but the question as regards fraud committed by the judgment-debtor has been gone into a great details. We are satisfied that the findings arrived at by the learned Trial Judge and affirmed by the First Appellate Court also by the High Court are equitable. It is in a situation of this nature, we are of the opinion that this Court in exercise of its jurisdiction under Article 142 of the Constitution of India can pass an appropriate order with a view to do complete justice to the parties. [Chandra Singh v. State of Rajasthan & Another (2003) 6 SCC 545 Oriental Insurance Co. Ltd. v. Brij Mohan & Ors.-2007 (7) SCALE 753 para 14]. Are the Appellants bound by the decree?"
20.Further, the learned counsel for the 1st respondent cites the decision Prema v. K.V.Rami Reddy 2000-2-L.W.-826 at page 827 wherein it is among other things held as follows:
"it would be clear that on the date the judgment was stated to have been pronounced, the learned Judge had not given his decision on issues 4 and 5. May be, the decision on issues 1 to 3 will impinge on the decision under issues 4 and 5. The question is whether there had been a valid pronouncement of judgment on 24.3.1999. It is under these circumstances, we have to examine the contentions of the learned senior counsel on either side... The question is whether in the instant case the judgment has been validly delivered. If it is a mere procedural irregularity in that the judge concerned had not signed the judgment, then the judgment thus rendered cannot be invalidated. The mere fact that a major issue has been answered by the learned Judge in the judgment already dictated will not by itself lead to the conclusion that the judgment had been delivered.
It has already been noticed that the learned Judge had not completed the judgment before he delivered his decision. It should be deemed that there is no judgment in the eye of law. He had not completed the judgment. There was no earthly reason why he should venture to give his decision. The least that he could have done was to reopen the case, complete the judgment and then pronounce the same. There was no particular hurry to deliver the judgment on the 24th. He had reserved orders on the 12th. He could have delivered the judgment on the 25th or even on 27th. Heavens were not going to fall. In as much as there was no judgment in the eye of law on the date he purported to pronounce the judgment, the judgment now available should be held to be no judgment at all. The Civil Revision Petition will stand allowed and the "judgment dt.24.3.1999" will stand set aside. The matter is remitted to the present 7th Assistant City Civil Judge, who will hear arguments afresh and give a decision."
21.The learned counsel for the 1st respondent cites the decision of Honourable Supreme Court K.V.Rami Reddi v. Prema AIR 2008 SUPREME COURT 1534 at Page 1535 wherein it is held thus:
'The declaration by a Judge of his intention of what his 'judgment' is going to be, or a declaration of his intention of what final result it is going to embody, is not a judgment until he had crystallized his intentions into a formal shape and pronounced it in open Court as the final expression of his mind. Civil P.C. does not envisage the writing of a judgment after deciding the case by an oral judgment and it must not be resorted to and it would be against public policy to ascertain by evidence alone what the 'judgment' of the Court was, where the final result was announced orally but the 'judgment', as defined in the CPC embodying a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision, was finalized later on. The mere fact that a major portion of the judgment has been already dictated, will not, by itself, lead to the conclusion that the judgment had been delivered.'
22.Lastly, on the side of the 1st respondent, the decision of this Court Registrar, Manonmaniam Sundaranar University v. Suhura Beevi Educational Trust and others AIR 1995 MADRAS 42 is cited wherein it is observed as follows:
'Though liberty may lie with the plaintiff in a suit to withdraw or abandon at any time after the institution of the suit, the whole of the suit or part of his claim, yet, it cannot be considered to be so absolute as to permit or encourage or ratify an abuse of process of Court or fraud to be played upon parties as well as Court. The so-called abandonment ought not to be a ruse to get rid of a party but yet to get the same relief prayed for earlier. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself is no licence to the plaintiff to claim a right to do so to the detriment of the legitimate rights of a party-defendant behind its back and with ulterior motive and oblique purpose and courts could not be held to be powerless to prevent such onslaught on the institute of administration of justice.'
23.The learned counsel for the petitioners submits that it is not only the 1st respondent/4th plaintiff has got temple properties but others have also got the same in partition.
24.At this juncture, this Court pertinently points out that a Compromise Decree is only the record of contract between the parties to which the Court's seal is superadded and a Court of law does not decide anything. Hence, a Compromise Decree or Order does not operate as Res judicata. As per the provisions of Order 23 Rule 3 of Civil Procedure Code, the Court can refuse to pass a decree in terms of the compromise only if it comes to the conclusion that the said agreement or compromise is not lawful. A Court of law has every jurisdiction to examine whether the agreement or compromise is lawful within the meaning of the explanation to Order 23 Rule 3 of Civil Procedure Code. In order to determine whether or not an agreement has been reached between the parties the Court has the necessity to embark upon an enquiry as to the allegations of a party that his consent has been obtained by fraud, misrepresentation, undue influence or coercion etc. Where there is no evidence of alleged fraud and the party has received benefit under the Compromise Decree for a long time, in the instant case for a period of four years, the compromise would not be set aside as per the decision Ranga Reddy Associates, Hyderabad v. K.Shapor, Chennai AIR 2005, NOC 101:2004 (4) Andh LD 564 (DB) (AP).
25.It is apt for this Court to recall the decision of Honourable Supreme Court Dwarka Prasad Agarwal v. B.D.Agarwal, AIR 2003 SC 2686 (2693, 2694) wherein it is held that 'where a purported settlement is not lawful, the Court's order regarding the same will not be enforceable'. Also that an allegation that a compromise is vitiated by illegality, fraud, undue influence, misrepresentation etc. should be investigated by the Court as per decision Misrilal v. Sobha Chand AIR 1956 Bombay 569.
26.This Court in the interest of justice points out the decision Gopal Lal v. Babu Lal and others 1996 AIHC 3184 wherein it is held that "a party challenging the validity of a compromise can file petition under proviso to Rule 3 of Order 23 or can appeal under Section 96 of the Civil Procedure Code and he can also question the validity of compromise in view of Order 43 Rule 1-A of Civil Procedure Code'.
27.Also, this Court quotes the decision Smt.Vimala Kumari Gwal v. Dr.Satish Kumar Yadav 1997 AIHC 3469 wherein it is held that 'Order 23 Rule 3A of the Civil Procedure Code does not provide for any procedure for setting aside a Compromise Decree. On the other hand Rule 3-A prohibits a suit 'to set aside the decree on the ground that the compromise of which decree is passed was not lawful and more over it does not provide for procedure for setting aside a Compromise Decree'.
28.It is useful to refer to the decision Muthuswamy Gounder v. Janakiraman (insane person) and others 1991-Vol(II) MLJ 516 wherein it is held that 'one of the respondents not claiming any interest in certain suit properties and the contest with regard to those items is between the Appellant and another Respondent and the compromise between the appellant and that respondent does not affect the interest of the respondent claiming no interest and that the compromise is not void'.
29.In the decision Manoj Kumar Sonthalia v. Vivek Goenka and others 1995 2 MLJ 622 at page 623 wherein it is interalia held that 'A consent decree is not appealable under the code of Civil Procedure, (See-sec.96(3)). 0.23, Rule 3 of the Code, however, makes it clear that only a lawful agreement or compromise can satisfy the court for passing a decree in accordance therewith and only insofar as it relates to the parties to the suit whether or not the subject-matter of the agreement, compromise or settlement is the same as the subject-matter of the suit. If it is not a lawful agreement or compromise between all the parties and only some of them have chosen to compromise, those who are not parties to the compromise cannot suffer any decree in accordance therewith. The introduction of Rule 3-A that no suit shall lie to set aside the decree on the ground that the compromise on which the decree is passed was not lawful, leaves open to challenge in appeal the compromise decree which is void or voidable under the Indian Contract Act, 1872 and does not bar institution of a suit by a person who is not a party to the suit or a person who is a party to the suit but has not entered into the agreement or compromise.
The court cannot give directions to a person who is not a party to the suit or who is not a party to the settlement or compromise. The parties to the suit, it is obvious, may be asked to accept the compromise and those who have entered into the compromise may be subjected to the court's decree and those who have not accepted it are left free to choose their action in accordance with law. The person who, however, is nowhere in the proceedings before this Court cannot be asked to do a thing because the parties have entrusted him with some job in course of the settlement of the disputes amicably outside of the court and pursuant to such entrustment to him or her, he/she is required to do certain thing. The parties have to take the consequence of the such entrustment which is outside of the court proceedings and the court cannot have any concern with any such entrustment.'
30.In the decision of Honourable Supreme Court Byram Pestonji Gariwala v. Union Bank of India and others AIR 1991 Supreme Court 2234 it is held thus 'The words 'in writing and signed by the parties', inserted in O.23, R.3, C.P.C by the C.P.C (Amendment) Act, 1976 necessarily mean and include duly authorised representative and Counsel. Thus a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject matter of the suit. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment.
Counsel's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit. However, a compromise decree may incorporate not only matters falling within the subject matter of the suit, but also other matters which are collateral to it. The position before the amendment in 1976 was that, in respect of the former, the decree was excutable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.'
31.In the decision Meenakshi and another v. Manikkam alias Ammalu and another 1995 AIHC 1348 wherein it is held hereunder:
'Under O.23, R.3A of the Civil Procedure Code no suit shall lie to set aside a decree on the ground that compromise on which decree is based was not lawful and rule is applicable to cases where fraud, coercion or undue influence is alleged however the same is appealable under O.43 R.1A and under O.23, R.3 and explanation thereto Court which entertained compromise petition has to examine whether it was void or voidable under the Contract Act.'
32.In the decision Muthukrishnamal v. Anathalakshmi and another 1998 III CTC 748 following the decision of Honourable Supreme Court Byram Pestonji Gariwala v. Union Bank of India and others AIR 1992(1) SCC 31 it is held that 'counsel is authorised by vakalatnama to act on behalf of the client it includes entering into compromise helpful to the other party and 1968 K.L.T I (F.B) referred to on the role of counsel and the extended nature of his implied authority.'
33.Added further, this Court aptly points out the decision Gurudev Kaur and another v. Mehar Singh and others AIR 1989 Punjab and Haryana 324 at page 325 wherein it is held as follows:
'A compromise or consent decree can be got set aside on one of the grounds on which a contract can be set aside, namely, if obtained by 'fraud;' 'misrepresentation', or 'coercion' with an additional ground in favour of the minors or persons of unsound mind, if they are able to prove that the next friend or the guardian, who acted on their behalf, was negligent in conducting the proceedings. If none of these grounds is established, the Courts in a subsequent suit will have no jurisdiction to go behind the consent decree to find out whether the facts stated in the plaint, which culminated into compromise decree were right or wrong.
AIR 1951 SC 280 and AIR 1954 SC 352, Rel. on.'
34.Coming to the aspect of Order XX Rule 8 of Civil Procedure Code it is necessary for this Court to extract the same for better appreciation of the matter in issue and the same runs as follows:
'Procedure where Judge has vacated office before signing decree.-
Where a Judge has vacated office after pronouncing judgment, but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate.'
35.In the decision Hakikullah Haji Rahimutullah and others v. The Maharashtra Housing and Area Development Authority and others AIR 1997 Bombay 239 pertaining to a proceeding under Section 66 of the Maharashtra Housing and Area Development Act, 1976, the competent authority after hearing both parties dictating judgment in open Court and dismissing eviction proceedings and dropping the action initiated under Section 66 and that the competent authority not signing the judgment as it was not typed before its term expired, it is held that 'it was an operative judgment and the successor incumbent shall sign the same and issue certificate copies to the petitioner.'
36.Also, this Court quotes the decision Pratap Kishore and another v. Gyanendranath AIR (38) 1951 Orissa 313 it is held that 'a judgment read out in open Court by a Judge written out by his predecessor does not become his own judgment so as to render him incompetent to hear an appeal against the decree passed on it under Section 38(2) of the Bengal, Agra and Assam Civil Courts Act (1887).'
37.It is relevant to make a mention that the 1st respondent/ petitioner/ 4th plaintiff in the affidavit in I.A.No.535 of 2007 in I.A.No.1519 of 1991 in O.S.No.275 of 1990 on the file of Principal Sub Court, Salem has among other things averred that he has been totally defrauded by his brothers who has taken advantage of his innocence, age and obtained his signature in a compromise petition fraudulently and such a compromise petition will not at all bind him in the circumstances and further huge fraud has been perpetrated on him by his elder brothers in allotting the Devasthanam properties to him in the partition and therefore, he has filed the suit O.S.No.214 of 2002 against his brothers and sisters and some other who are said to be the purchasers of some of the properties after the final decree has been passed and such sales effected on the basis of illegal final decree passed in I.A.No.1519 of 1991 will not bind him at all. Since the trial of the suit in O.S.No.214 of 2002 has been protracted by the respondents and the aim of the defendants 1 to 3 is that he shall not get his legitimate share in the properties left by his father and in view of the enormous delay he has been advised to file the final decree application again, impleading all concerned individuals inasmuch as the final decree passed earlier on 17.12.1991 is nonest and invalid in law etc.
38.It is the further stand of the 1st respondent/petitioner/4th plaintiff that the compromise petition has not been signed by all the parties concerned and also not signed by their Advocates and therefore, the same is invalid and that apart, the learned Judge who recorded the compromise has not passed any judgment thereon nor he has signed and pronounced the judgment on that very day and as a matter of fact, without a judgment there cannot be a Decree at all and hence, the compromise recorded itself bristles with illegalities, which render it void and since he has already waited for more than five years without getting any relief, he has prayed for passing of a fresh final decree, since any number of final decree petitions can be passed in law and therefore has prayed for passing of the final decree pursuant to the decree passed in O.S.No.275 of 1990.
39.In the counter filed by the 1st revision petitioner/1st plaintiff (in O.S. No.275 of 1990), it is inter alia stated that the 1st respondent/petitioner/4th plaintiff is a graduate in law, having rich experience and he has been representing the Joint Family Estate of Elumalai Gounder in various forum and offices and looking after the Court cases and represented up to Honourable Supreme Court in respect of cases filed against and on behalf of the family and moreover, prior to the filing of the suit, there has been a compromise muchalika arrived at between the 1st respondent/ 4th plaintiff and the respondents 1 to 6 (in I.A.No.535 of 2007) at the instance of common individuals and Panchayatdars on 20.06.1988 and as per the tenor and conditions of the said muchalika, all the properties of late Elumalai have been partitioned by recording the compromise before the Court in I.A.No.1519 of 1991 on 17.12.1991 and in fact, the entire properties have been measured by metes and bounds by a qualified surveyor with the active assistance and supervision of the 1st respondent/ 4th plaintiff and he has chosen the properties allotted to him, by himself and also after consulting his wife and in-laws and besides above, it is true that the 'D' schedule properties have been allotted to the 1st respondent/ 4th plaintiff and likewise other schedules have been allotted to respondents 1 to 3 in the compromise etc.
40.Continuing further, it is the further plea of the 1st revision petitioner/ 1st plaintiff that the 1st respondent/ 4th plaintiff is very well aware that his father and that of the respondents held that lease hold rights in respect of the properties belonging to Sri Kanniga Parameswari Devasthanam right from 29.11.1956 through a registered lease deed from the original owner Pattabi Chettiar and about the subsequent transfer of the ownership to the Devasthanam, by also attorning tenancy in favour of the Devasthanam and further, the 1st respondent is aware of the fact that there have been lease deeds executed including the one dated 04.11.1966 by his father in respect of the Devasthanam's lands and after the death of their father Elumalai, his entire family has been enjoying the lease hold rights and these lease hold rights devolved on the legal heirs of Elumalai, has also been partitioned in the said muchalika, by allotting to each of the 1st respondent/petitioner/4th plaintiff and revision petitioners 1 to 3/ plaintiffs 1 to 3 and their mother Jayalakshmi Ammal by specifically mentioning the nature of the holding of the Devasthanam's property and all the more, 1st respondent/ 4th plaintiff is a party to the said muchalika and in O.S.No.275 of 1990, the 1st respondent/ 4th plaintiff has included the property of Devasthanam, has the self acquired property of Elumalai Gounder and in respect of portions allotted to the parties they have been paying the rent to the temple authorities by means of a return etc.
41.Besides the above, it is the stand of the 1st revision petitioner/ 1st respondent/ 1st plaintiff that the dispute between the 1st respondent/ 4th plaintiff and the revision petitioners 1 to 3/ plaintiffs and the temple authorities have been settled on 16.03.2002, when the 1st respondent/ 4th plaintiff has executed a consent letter in favour of the temple authorities by entering into an arrangement of limiting the extent of lease and surrendering certain portion to the temple authority, by also agreeing to pay the lease amount as per G.O.Ms.No.353 dated 04.06.1999 in the presence of witnesses.
42.The pith and substance of the stand of the revision petitioners/ plaintiffs 1 to 3 is that the parties are enjoying the properties according to the partition and the revision petitioners have constructed huge buildings in the properties allotted to them in the partition and they have also raised loans on them for improvement and that the 1st respondent/ 4th plaintiff has also acted upon the said partition by selling the portions of rice mill machineries, ginning factory machineries, flour mill machineries with motor, boilers, shafts, pulleys, elevators worth Rs.25,00,000/- and appropriated the same for himself and also that the revision petitioners/plaintiffs have also acted on the compromise decree and hence, the partition already effected cannot be reopened at the whims and fancy of the 1st respondent/ 4th plaintiff. In this connection it is not out of place for this Court to point out that the 1st revision petitioner/ 1st plaintiff in his counter in I.A.No.535 of 2007 at paragraph 11 has stated the following:
"It is false to allege that the learned Judge who ordered the compromise did not pass any judgement thereon nor did him sign and pronounce judgement on that very date. It is submitted that there is a judgement duly signed by the Judge. So far as the compromise decree is concerned, one Mr.Dhandapani, who was the then Principal Sub Judge of Salem, recorded the compromise and also signed the compromise decree. In the Judgement, one Mr.P.Ramakrishnan who is his successor has signed for and on behalf of Principal Sub Judge. It is not illegal. It is permitted under O.20 R.8 C.P.C., that if at the time of signing the judgement, the Presiding Officer who passed the decree ceased to be the presiding officer, then his successor or in charge can sign on his behalf. Hence there is absolutely no illegality involved in signing the judgement by Mr.P.Ramakrishnan. It is submitted that there is no illegality committed by the Sub Court. It is false to allege that the compromise decree recorded is shrouded with illegalities and it would render void."
43.The respondents 4 to 6 in I.A.No.535 of 2007 have reportedly relinquished their rights by receiving Rs.25,000/- each by executing a release deed dated 11.04.1973 and since they have not claimed any property they have been given up and the same has been said to have been recorded by the learned Principal Sub Judge, Salem in the compromise decree and judgment.
44.Also, a plea is taken on the side of the revision petitioners/ plaintiffs 1 to 3 that the 1st respondent/ 4th plaintiff after entering into a compromise, wants to wriggle out of his settlement with the temple for which he wants to grind his axe.
45.It is to be borne in mind that if the statements of the parties have been recorded by the trial court containing the clauses of the compromise which have been duly signed by them, then the ingredients of the first part of Or.XXIII R.3 stand properly satisfied in the considered opinion of this Court. Indeed, the signed statements are covered by the definition of 'document' mentioned in Section 3 of the Indian Evidence Act. However, if a Court of law entertains doubt about the factum/genuineness of the compromise it can insist on the personal appearance of the parties as per decision DP Chada v. Trijugi Narain Mishra AIR 2001 Supreme Court 457 ( 465). In respect of a compromise signed by both the parties, the defendant resiled from the compromise and the Court is entitled to refuse to record the compromise and decree the suit in terms of compromise as per decision Kari Singh v. Ramkumar, AIR 1993 Raj 204, 207.
46.The salient feature of a compromise is that the same ought to be enforceable in the eye of law. The prime test is, were the individuals competent to enter into the agreement in order to achieve the purpose they had in view. In view of the divergent stand taken by the contesting parties before this Court in this revision, it is apt for this Court to extract the Rule 32 of the Civil Rules of Practice which deals with 'Proof of facts by affidavit' and the same enjoins as follows:
'Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise provided by these rules, ordered by the Court, be proved by affidavit, but the Judge may, in any case, direct evidence to be given orally; and thereupon the evidence shall be recorded and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibit shall be prepared and annexed to the judgment.'
47.As far as the present case is concerned a Final Decree has been passed in O.S.No.275 of 1990 on 17.12.1991 by the learned Principal Sub Judge, Salem. Later, I.A.No.535 of 2007 in O.S.No.275 of 1990 has been filed by the 1st respondent/petitioner/4th plaintiff before the trial court praying for passing of the final decree consequent to the Decree in O.S.No.275 of 1990 (on the ground that in law any number of final decree petitions can be projected) and the same has been allowed without costs, resulting in annulment of final decree based on the compromise petition filed in I.A.No.1519 of 1991. Earlier, the 1st respondent/petitioner/4th plaintiff has filed O.S.No.214 of 2002 on the file of learned Additional Sub Judge, Salem praying for the relief of declaration that the final decree passed in I.A.No.1519 of 1991 in O.S.No.275 of 1990 is void, having been obtained by fraud at the instance of D1 to D3 etc. and the same has been dismissed as withdrawn on 13.11.2007. These facultative aspects of the matter float on the surface lucidly, about which the parties are alive and very much conscious of the same.
48.Though the Civil Revision Petitioners/ Plaintiffs 1 to 3 have placed reliance on Order XX Rule 8 of Civil Procedure Code relating to the procedure where a Judge has vacated the office before signing decree the ingredients of the said provision are of no avail to them, since it speaks of a Judge having vacated the office, after pronouncement of judgment, but without signing the decree etc. In the present case on hand, in I.A.No.1519 of 1991 in O.S.No.275 of 1990 when the compromise has been recorded by Thiru.D.Dhandapani, learned Principal Sub Judge, Salem on 17.12.1991, he has not vacated his office and as a matter of fact, his successor has also not taken charge from him. Therefore, strictly speaking, Thiru.D.Dhandapani, learned Principal Sub Judge, Salem alone should have signed in the final decree passed in O.S.No.275 of 1990 dated 17.12.1991. Unfortunately, the final decree in O.S.No.275 of 1990 dated 17.12.1991 on the file of learned Principal Sub Judge, Salem, bears 'the name of Thiru.D.Dhandapani, B.A., B.L., Prl.Sub Judge, Salem, Tuesday, the 17th day of December 1991, O.S.No.275 of 1990' but at the end of the decree for Principal Sub Judge, Salem 'one P.Ramakrishnan has signed'. A perusal of the final decree in O.S.No.275 of 1990 dated 17.12.1991 shows the word 'for' is added after the words Principal Subordinate Judge, Salem and below the word 'for' someone in the office has put his short initials.
49.Admittedly, learned Additional Sub Judge, Salem who signed the final decree dated 17.12.1991 in O.S.No.275 of 1990 on the file of learned Principal Sub Judge, Salem at the relevant time has been serving as Additional Sub Judge, Salem and it passes beyond one's comprehension as to how an Additional Sub Judge, Salem who has not passed the final decree in O.S.No.275 of 1990 dated 17.12.1991 can affix his signature in the said final decree when that too he has been on Casual Leave on 17.12.1991 as seen from the 'A' Diary extract pertaining to the Court of Additional Sub Judge, Salem. Therefore, it is a clear case of mischief or malafide act or misrepresentation or playing truant by the concerned in the office of learned Principal Sub Judge, Salem while obtaining the signature of learned Additional Sub Judge, Salem which needs to be investigated or enquired into threadbare by means of letting in oral and documentary evidence, in the considered opinion of this Court. It is also not known and no material is brought forth to the satisfaction of this Court as to why Thiru.D.Dhandapani, learned Principal Sub Judge, Salem has not signed in the final decree in O.S.No.275 of 1990 dated 17.12.1991. Equally, it is also not made clear to this Court as to why Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem has affixed his signature in the final decree dated 17.12.1991 in O.S.No.275 of 1990, when he is not concerned with the said decree at all.
50.More over, it cannot be forgotten that Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem has been holding office as Additional Sub Judge, Salem and conspicuously, he has been on Casual Leave and therefore, the cases in his Court have been reposted to various dates as seen from the certified true xerox copy of the 'A' Diary extract, filed as relevant typed set of papers on the side of respondents before this Court. Significantly, in I.A.No.535 of 2007 Thiru.D.Dhandapani, learned Principal Sub Judge, Salem and Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem have not been examined as witnesses before the trial court. On both sides, no one has been examined as witness in I.A.No.535 of 2007. Only documents have been marked on either side. No explanation is forthcoming on both side as to why Thiru.D.Dhandapani, learned Principal Sub Judge, Salem and Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem have not been examined as witnesses in the proceedings in I.A.No.535 of 2007 before the Trial Court. As a matter of fact, the trial court has come to the definite conclusion while passing orders in I.A.No.535 of 2007 on 21.04.2008 that signing of the final decree in O.S.No.275 of 1990 by Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem when he has been on leave cannot be accepted and on that day, when the final decree has been passed, the learned Principal Sub Judge, Salem has been in service in the very same Court. Suffice it for this Court to point out that the presence of the signature of Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem in the final decree dated 17.12.1991 in O.S.No.275 of 1990 though the said decree shows the presence of Thiru.D.Dhandapani, learned Principal Sub Judge, Salem is indeed a murky affair/matter and the same needs to be investigated effectively and efficaciously, completely and comprehensively, so that such thing shall not recur again, notwithstanding the fact that preparation of a Decree is an administrative act of the Court office in which the concerned Judge signs.
51.Though I.A.No.535 of 2007 has been filed by the 1st respondent/ 4th plaintiff as petitioner before the trial court on 14.09.2007 nearly after lapse of 16 years from the date of passing of the final decree in O.S.No.275 of 1990 dated 17.12.1991, a perusal of the order passed by the trial court in I.A.No.535 of 2007 dated 21.04.2008 shows that it does not discuss or deal with the aspect of the said delay and whether the 1st respondent/ 4th plaintiff is justified in projecting the said application when the parties have acted upon the compromise decree passed earlier in O.S.No.275 of 1990.
52.Considering the respective contentions and on an overall assessment of the facts and circumstances of the case in a cumulative fashion and also in the light of qualitative and quantitative discussions mentioned supra, this Court without expressing any opinion on the merits of the matter is of the considered view that oral evidence of the respective parties are very much necessary in the matter in issues like (1) whether compromise is lawful or otherwise? (2) whether compromise is acted upon? (3) whether the 1st respondent/ 4th plaintiff wants to wriggle out of the settlement with temple? and also to enable the trial Court to render a specific and a categorical finding as to whether the 1st respondent/ 4th plaintiff is lawfully entitled to file I.A.No.535 of 2007 after an inordinate delay of 16 years from the date of passing of Final Decree in O.S.No.275 of 1990 dated 17.12.1991 on the file of Principal Sub Judge, Salem and therefore, to find out the truth of the matter in threadbare, this Court allows the Civil Revision Petition by setting aside the order passed by the trial court in I.A.No.535 of 2007 dated 21.04.2008 to subserve the ends of justice and remits back the matter to trial Court for fresh consideration in accordance with law.
53.In the result, the Civil Revision Petition is allowed. The order passed by the trial court in I.A.No.535 of 2007 dated 21.04.2008 is set aside. The matter is remitted back to the trial court viz., the learned Principal Sub Judge, Salem for considering the entire gamut of the issues in I.A.No.535 of 2007 afresh by permitting the parties to adduce oral and produce documentary evidence (including the Release Deed dated 14.11.1973) and also providing them necessary opportunities to examine both Thiru.D.Dhandapani the then learned Principal Sub Judge, Salem and Thiru.P.Ramakrishnan, then learned Additional Sub Judge, Salem to prove their case and the trial court is also bound to examine the concerned persons as witnesses (either retired or serving in different Courts in different capacities like then Sheristadar then Steno-typist to Principal Sub Judge, Salem) who have obtained the signature of Thiru.P.Ramakrishnan, learned Additional Sub Judge, Salem in the final decree in O.S.No.275 of 1990 dated 17.12.1991 and also to know as to why the signature of Thiru.D.Dhandapani, learned Principal Sub Judge has not been obtained in the final decree in O.S.No.275 of 1990 dated 17.12.1991 when he has been in service at the relevant point of time in Salem. The trial court is directed to dispose of the I.A.No.535 of 2007 on merits within a period of three months from the date of receipt of a copy of this order, so as to give a complete quietus to the controversies/disputes involved between the parties in a comprehensive manner. Consequently, the connected miscellaneous petition is closed. No costs.
gm To The Principal Subordinate Judge, Salem