The High Court dismissed an application under Article 227 challenging a consent decree. The Court held that the remedy for a fraud-tainted consent decree is a review application under CPC, not a writ petition.
The petition filed under Article 227 of the Constitution of India was dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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. 2316 of 2016 (O)
OS 183/2013 of PRL.SUB COURT,IRINJALAKUDA
PETITIONERS/ACCUSED 1 & 2
1. SUKUMARAN K.K. AGED 66 YEARS, S/O KRISHNAN, KALLADA HOUSE, THANISSERY, THRISSUR.
2. NIGIL K.S., AGED 36 YEARS, S/O SUKUMARAN, KALLADA HOUSE, THANISSERY, THRISSUR.
BY ADVS.SRI.A.X.VARGHESE
SRI.A.V.JOJO
RESPONDENTS/STATE AND PLAINTIFF
2. SASIDHARAN, S/O CHATHUNNY, POYYARA HOUSE, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR 680 121.
BY 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. 2316 of 2016
APPENDIX
EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.183/2013 IN THE FILE OF THE SUB COURT, IRINJALAKUDA DATED 22.2.2013.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONERS' 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.NO.183/2013.
EXHIBIT P5 CERTIFIED COPY OF THE MEDIATION SETTLEMENT ALONG WITH COMPROMISE DECREE IN O.S.NO.183/2013 DATED 30.9.2015.
EXHIBIT P6 TRUE COPY OF THE EXEUCTION PETITION 25/2016 BEFORE THE SUB COURT, IRINJALAKUDA.
//True copy//
P.S to Judge
K.RAMAKRISHNAN, J
JUDGMENT
OP(C).2316/16
2
u/s 23 Rule 3 of the Code of Civil 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 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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4.The counsel for the petitioners 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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the matter was referred to mediation and 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
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in an Adalath under the provisions of 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
OP(C).2316/16
approach this court under Article 227 of the Constitution of India. So the 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/26.9.2016
//True copy//
P.S to Judge
2 issues framed by the court
Whether a petition under Article 227 of the Constitution of India is the proper remedy to challenge a consent decree allegedly vitiated by fraud.
Whether the remedy in case of fraud on a consent decree is to file a review application under Order 47 Rule 1 r/w Section 114 CPC.
4 provisions across 2 enactments
Sukumaran K.K.
Nigil K.S.
State of Kerala
Sasidharan
KRamakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
