Dismissed

R.Gangadharan Nair v. Padmanabhan M.N.

Kerala HC9 Jul 2019RSA/555/2009

Case brief

AI extract

What is this about?

This appeal against dismissal of a suit for declaration of prescriptive easement examined whether an earlier compromise decree binds an absent party. The court distinguished a compromise decree from a civil court decree and held it does not bind non-signatory parties. Given the absence of consent and insufficient notice period, the appeal was dismissed.

What did the court decide?

The appeal is dismissed with no costs.

R.Gangadharan Nair Vs Padmanabhan M.N. — Property and Title | Kerala HC (2019)

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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 P.SOMARAJAN

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TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941

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RSA.No.555 of 2009

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AGAINST THE JUDGMENT & DECREE IN AS 85/2004 of SUB COURT,KATTAPPANA DATED 28-02-2009

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AGAINST THE JUDGMENT & DECREE IN OS 111/2002 of MUNSIFF COURT,KATTAPPANA

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APPELLANT/APPELLANT/PLAINTIFF:

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R.GANGADHARAN NAIR

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S/O. RAGHAVA KURUP, BLOCK NO. 730, KALLARA PATTAM COLONY, CHOTTUPARA.P.O, PARATHODU VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT.

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BY ADVS.

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SRI.GRASHIOUS KURIAKOSE (SENIOR)

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 PADMANABHAN M.N., S/O NEELAKANDAN METHALLOOR HOUSE, CHOTTUPARA KARA, PARATHODU VILLAGE, UDUMBANCHOLA TALUK, IDUKKI.

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2 JOHNSON SO. KUNJACHAN PULLOLICKAL HOUSE, CHOTTUPARA KARA,

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DO. DO.

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BY ADVS.

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SRI.K.K.CHANDRAN PILLAI (SR.) SRI.A.S.SAJUSH PAUL

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RSA No.555/2009

JUDGMENT

The plaintiff came up with this appeal aggrieved by the concurrent finding rendered by the trial court and the first appellate court in a suit for declaration of prescriptive right of easement over F schedule property. Plaint A and B schedule are the registered holding of plaintiff. Plaint schedule A to D actually belonged to the family of plaintiff and in the year 1981 under a partition A schedule was allotted to the share of plaintiff. B schedule was allotted to the brother of plaintiffs from whom it was purchased by the plaintiff. C schedule was allotted to one of his sisters from whom first defendant purchased the same. D schedule was allotted to another brother. E schedule is the entire road lying adjoining to some of the properties. F schedule forms part of E schedule over which the plaintiff claims prescriptive right of easement. The suit was filed for declaration of prescriptive right of easement and injunction. Both the courts below rejected the claim of plaintiff by dismissing the suit. Aggrieved by the said decree and judgment, the plaintiff came up with this appeal.

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It is admitted by the plaintiff that there was an earlier suit in O.S.No.388/1998 between the plaintiff and the defendants. That suit

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RSA No.555/2009

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was filed with respect to the very same F schedule property claiming possessory right. It was subsequently ended in a compromise decree in Ext.A1. But in Ext.A1 compromise decree the first defendant herein who was the 5^th defendant in the earlier suit is not a signatory. But a decree was passed by the trial court accepting compromise, that too without the juncture of 5^th defendant therein presumably on the reason that he remained ex parte in the earlier suit.

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The question came up for consideration is whether a compromise decree would bind on a party who remained ex parte and whether it will have the legal force of a decree of a civil court ? If not, what makes the difference ?

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The cardinal difference between a decree of civil court as defined under Section 2 of Code of Civil Procedure and a compromise decree by the act of parties lies on the legal incidents that is attached to a decree under the provisions of the C.P.C. including right of appeal, setting aside ex parte decree etc. The incidents attached to a decree of civil court cannot be extended to a compromise decree except for the purpose of its execution. 'Decree' of a civil court is defined under Section 2 of the Code of Civil Procedure which stands for “the formal expression of an adjudication which, so far as regards

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RSA No.555/2009

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the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.” The legal incident attached to a decree of civil court such as right of appeal, second appeal, review, setting aside ex parte decree etc. are applicable in the matter of a decree of a civil court. There are material differences between a decree as defined under Section 2 of the Code of Civil Procedure from that of a compromise decree, though both are enforceable under law through process of court and capable of execution through court. There is no element of adjudication by a Civil Court in a compromise decree, but simply accepting the same if it is not in contravention of Section 23 of the Contract Act. But that does not mean that the Civil Court had adjudicated the controversy in the suit determining the rights of parties. It will not have any legal consequences or incidents attached with a decree of Civil Court. One of the legal incident attached to the decree of civil court that it would bind on all parties to the suit and the

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RSA No.555/2009

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person litigating under them irrespective of the fact that some of the defendants remained ex parte. An ex parte decree would bind on all the parties to the suit, but a compromise arrived at by the parties and the decree thereof would bind only on the person who are signatory to the compromise. There is no provision for any ex parte compromise decree and as such there cannot be any application of Order IX CPC and the decree of compromise would not bind on the party who remained ex parte. It is only a contract arrived at by the parties and accepted by the Civil Court giving the sanctity of a decree so as to enforce it either through court or otherwise. It may have binding force only to the parties to the compromise and the persons litigating under them and not otherwise.

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The earlier compromise entered into without the juncture of first defendant herein though ended in a compromise decree, cannot be brought under the purview of a “decree” as defined under Section 2 of the Code of Civil Procedure, the decree of a civil court . An ex parte decree would bind on all the parties to the suit and bound by the doctrine of res judicata as embedded under Section 11 CPC and amenable to Order IX CPC as well as appeal, review etc.. But a compromise decree would not bind on a party who remained ex parte

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RSA No.555/2009

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unless he is a consenting party or a signatory to the compromise. As such, the earlier compromise entered into and the decree thereof would not bind on the first defendant though he remained ex parte in the suit.

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Yet another reason is also available to non-suit the plaintiff as the claim is for prescriptive right of easement and there is an admission in the earlier suit regarding the obstruction created over the way before the institution of the earlier suit in O.S.No.388/1998. The present suit was filed in the year 2002 and hence it will not satisfy the twenty year period “ending within two years” which stands for the time available for instituting a suit from the date of obstruction as defined under Section 15 of the Indian Easement Act to the expression “interruption”.

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Hence the finding rendered by both the courts below in dismissing the suit deserves no interference. No other substantial question involved in the appeal. The appeal deserves only dismissal, but without costs.

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The appeal is dismissed. No costs.

Sd/-

P.SOMARAJAN

JUDGE

RSA No.555/2009 7

R.Gangadharan Nair v. Padmanabhan M.N.

Case brief

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R.Gangadharan Nair v. Padmanabhan M.N.

Case brief

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