Dismissed

Sukumaran K.K. v. State of Kerala

Kerala HC23 Sept 2016OP(C)/2310/2016

Case brief

AI extract

What is this about?

Petitioners challenged a consent decree resulting from a mediation settlement under Article 227 Constitution, alleging fraud and lack of free consent. The Court held that remedies for vitiating circumstances in post-mediation consent decrees lie in review, not Article 227, and dismissed the petition in limine.

What did the court decide?

The petition filed under Article 227 of the Constitution of India was dismissed in limine as it lacks merit because the remedy for challenging a consent decree lies in filing for review.

Sukumaran K.K. Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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FRIDAY, THE 23RD DAY OF SEPTEMBER 2016/1ST ASWINA, 1938

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OP(C).No. 2310 of 2016 (O)

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OS 184/2013 of ADDL.SUB COURT, IRINJALAKUDA

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PETITIONER(S):

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SUKUMARAN K.K. AGED 66 YEARS, S/O. KRISHNAN, KALLADA HOUSE, THANISSERY, THRISSUR.

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NIGIL K.S.

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AGED 36 YEARS, S/O. SUKUMARAN, KALLADA HOUSE, THANISSERY, THRISSUR.

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BY ADVS.SRI.A.X.VARGHESE SRI.A.V.JOJO

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RESPONDENT(S):

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STATE OF KERALA REPRESENTED BY ITS LAW SECRETARY, SECRETARAIT, THIRUVANANTHAPURAM, PIN- 695 001.

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SIVADASAN,

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S/O. SREEDHARAN, KUMARAMPILLI HOUSE, PORATHISSERY VILLAGE, PORATHISSERY DESOM, MUKUNDAPURAM TALUK, THRISSUR.

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BY SR.GOVERNMENT PLEADER SRI.S.GOPINATHAN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2310 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT. P1 TRUE COPY OF THE PLAINT IN O.S. 184/2013 IN THE FILE OF SUB COURT, IRINJALAKUDA DATED 22.2.2013.

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EXT. P2 TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONERS' FEDERAL BANK PASSBOOK.

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EXT. P3 TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONER'S FEDERAL BANK PASSBOOK.

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EXT. P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND PETITIONER I O.S. 184/2013.

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EXT. P5 CERTIFIED COPY OF THE MEDIATION SETTLEMENT ALONG WITH COMPROMISE DECREE IN O.S 184/2013. DATED 30.9.2015.

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EXT. P6 TRUE COPY OF THE EXECUTION PETITION 26/2016 BEFORE THE SUB COURT, IRINJALAKUDA.

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//True copy//

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P.S to Judge

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K.RAMAKRISHNAN, J

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O.P.(C).2310 of 2016

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- - - - Dated 23^rd September, 2016

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JUDGMENT

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1.This is an application filed by the petitioners challenging Ext.P5 mediation settlement consent decree passed under Article 227 of the Constitution of India.

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2.It is alleged in the petition that the 2^nd respondent herein filed O.S.184 of 2013 before Sub Court, Irinjalakuda, for realization of certain amount said to be due from the petitioners. When received summons, they 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 Order 23 Rule 3 of the Code of Civil

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OP(C).2310/16

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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 petitioners, settlement was obtained under compelling circumstances and they were 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.

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3.Heard Sri.Jojo A.V, the learned counsel appearing for the petitioners.

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4.The counsel for the petitioners

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OP(C).2310/16

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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 petitioners were under the compelling circumstances made to sign the settlement arrived at between the parties and in fact, there was no free consent given and mediation settlement agreement was obtained by fraud and misrepresentation. So this court has got power to set aside the decree passed.

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5.It is an admitted fact that the Suit was filed by the 2^nd respondent against the petitioners for realization of certain amount and according to the petitioners, the matter was referred to mediation and

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OP(C).2310/16

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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.

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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

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OP(C).2310/16

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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 petitioners are aggrieved by the same and if they have got a case that it was obtained by fraud or misrepresentation and they have not signed the same with free will, then their remedy is to file an application to review the judgment and not to approach this court under Article 227 of

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OP(C).2310/16

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the Constitution of India. So the petition is misconceived and lacks merit. The same is liable to be dismissed in limine.

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In the result, the petition is dismissed in limine.

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Sd/-

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K.RAMAKRISHNAN Judge

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Mrcs/26.9.2016

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//True copy//

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P.S to Judge

Sukumaran K.K. v. State of Kerala

Case brief

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Sukumaran K.K. v. State of Kerala

Case brief

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