Kerala High Court
Nigil.K.S vs State Of Kerala on 22 February, 2013
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 23RD DAY OF SEPTEMBER 2016/1ST ASWINA, 1938
OP(C).No. 2317 of 2016 (O)
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OS 182/2013 of ADDL.SUB COURT, IRINJALAKUDA
PETITIONER(S):
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NIGIL.K.S,
AGED 36 YEARS, S/O SUKUMARAN, KALLADA HOUSE,
THANISSERY, THRISSUR.
BY ADVS.SRI.A.X.VARGHESE
SRI.A.V.JOJO
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS LAW SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2. MURALI,
S/O SREEDHARAN, KUMARAMPILLI HOUSE, CHELUR DESOM,
MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK,
THRISSUR, 680 121.
BY SR.GOVERNMENT PLEADER SRI.S.GOPINATHAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23-09-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2317 of 2016 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S 182/2013 IN THE FILE OF
SUB COURT, IRINJALAKUDA DATED 22-02-2013.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONER'S
FEDERAL BANK PASSBOOK.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONER'S
FEDERAL BANK PASSBOOK.
EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
PETITIONER IN O.S 182/2013
EXHIBIT P5 CERTIFIED COPY OF THE MEDIATION SETTLEMENT ALONG
WITH COMPROMISE DECREE IN O.S 182/2013 DATED 30-09-2015
EXHIBIT P6 TRUE COPY OF THE EXECUTION PETITION 24/2016 BEFORE
THE SUB COURT, IRINJALAKUDA.
//True copy//
P.S to Judge
K.RAMAKRISHNAN, J
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O.P.(C).2317 of 2016
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Dated 23rd September, 2016
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JUDGMENT
1.This is an application filed by the petitioner challenging Ext.P5 mediation settlement consent decree passed under Article 227 of the Constitution of India.
2.It is alleged in the petition that the 2nd respondent herein filed O.S.182 of 2013 before Sub Court, Irinjalakuda, for realization of certain amount said to be due from the petitioner. When he received summons, he appeared and filed written statement denying the allegations and thereafter, the matter was referred to mediation. It was settled in the mediation and on the basis of the mediation settlement, an application has been filed for record settlement and passed a decree under Oder 23 Rule 3 of the Code of Civil OP(C).2317/16 2 Procedure (hereinafter referred to as "the Code") as Ext.P4. Accordingly, on the basis of which Ext.P5 decree has been passed on 30.9.2015. According to the petitioner, settlement was obtained under compelling circumstances and he was forced to sign the settlement on account of the prevailing circumstances at the relevant time and in fact, it was not of free settlement arrived at between the parties and it was obtained by misrepresentation and fraud. So, the same is liable to set aside under Article 227 of the Constitution of India, as it was obtained by misrepresentation and fraud. Hence this petition.
3.Heard Sri.Jojo A.V, the learned counsel appearing for the petitioner.
4.The counsel for the petitioner OP(C).2317/16 3 submitted, in view of the dictum laid down by this Court as well as by the Apex Court, that against the award passed in an Adalath if obtained by fraud, no appeal will lie and it can only be set aside by resorting to filing an application under Article 226 or 227 of the Constitution of India. The petitioner was under the compelling circumstances made to sign the settlement arrived at between the parties and in fact, there was no free consent given for mediation obtained by fraud and misrepresentation. So this court has got power to set aside the decree passed.
5.It is an admitted fact that the Suit was filed by the 2nd respondent against the petitioner for realization of certain amount and according to the petitioner the matter was referred to mediation and OP(C).2317/16 4 the matter was settled in the mediation. On the basis of the settlement arrived at between the parties, parties filed an application under Order 23 Rule 3 of the Code, to record compromise and dispose of the Suit on the basis of the compromise, and it was on that basis that the suit has been decreed evidenced by Ext.P5.
6.It is true that if a consent decree has been passed, no appeal will lie under Section 96 of the Code. But in the case of a consent decree, if parties have a case that it was vitiated by any vitiating circumstance, their remedy is to file an application for review the judgment under Section 114 r/w Order 47 Rule 1 of the Code and not to approach this Court under Article 227 of the Constitution of India. The award passed in an Adalath under the provisions of OP(C).2317/16 5 the Legal Services Authorities Act stands in a different footing as there is no opportunity for the court to go into the compromise entered into between the parties before passing a decree. But in a case where mediation settlement is arrived at and parties have accepted the mediation agreement, they are filing an application for record settlement on that basis and the court is applying the provisions of Order 23 Rule 3 of the Code and only if satisfied that it was legally enforceable agreement that a decree is being passed on that basis. If the petitioner is aggrieved by the same and if he has got a case that it was obtained by fraud or misrepresentation and he was not signed the same with free will, then his remedy is to file an application to review the judgment and not to approach this court under Article 227 of the Constitution of India. So the OP(C).2317/16 6 petition is misconceived and lacks merit. The same is liable to be dismissed in limine.
In the result, the petition is dismissed in limine.
Sd/-
K.RAMAKRISHNAN Judge Mrcs/23.9.2016 //True copy// P.S to Judge