Lissy Antony. Vs. K.A.George.

Lissy Antony. vs K.A.George.

Type Court Judgment Court Kerala Decided Dec 13, 2010

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https://sooperkanoon.com/case/917004

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Citation: sooperkanoon.com/917004
Court: Kerala High Court
Judge: Thomas P.Joseph, J.
Decided On: Dec 13, 2010
Case Number: OP(C).No. 1054 of 2010
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

[MR. JUSTICE ANAND BYRAREDDY, J.] This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the Respondent draw and pay the provisional pension from 08.04.2000 to till completion of enquiry. Thereafter issue further direction the period from 20.01,1995 onwards till the enq...

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Lissy Antony.

Advocate SRI.TOJAN J. VATHIKULAM, Adv.

Respondent

K.A.George.

Legal References

Reported In: ILR2010(4)Ker467

Excerpt

[mr. justice anand byrareddy, j.] this writ petition is filed under articles 226 and 227 of the constitution of india praying to direct the respondent draw and pay the provisional pension from 08.04.2000 to till completion of enquiry. thereafter issue further direction the period from 20.01,1995 onwards till the enquiry completed to treat the period as on duty in the event of charges and to du-w and pay all consequential benefits and etc......deposited by the respondent. there was yet another application for transferring the amount to fixed deposit. court below considered these matters and held that contention of petitioner that she happened to be a party in the compromise decree on account of fraud and coercion cannot be accepted. 4. no doubt when a compromise on which the decree is passed is vitiated by any vitiating circumstance proper course is to seek the judgment and decree to be recalled by recourse to rule 3 of order xxiii of the code. a separate suit is bad as specifically stated in rule 3a of order xxiii of the code. hence the view taken by the learned sub judge that i.a. no.4822 of2007 is not maintainable cannot be accepted. but that finding of the court below is of no consequence since learned sub judge has decided the application on merit as well. on going through the records i am not persuaded to think that finding entered by the learned sub judge is either perverse or incorrect having regard to the facts and circumstances stated above. it is also relevant to note that though f.a.o. no.119 of 2010 was disposed of on 24.09.2010 this petition is preferred only on 07.12.2010. in the circumstances i do not find reason to interfere with the impugned order.

Full Judgment

1. Defendant in O.S. No.444 of 2004 of the court of learned Additional Sub Judge, North Paravur is the petitioner before me challenging correctness of Ext.P3, order dated 23.01.2009. Respondent sued petitioner for specific performance of an agreement for sale. There was a compromise decree passed in favour of respondent on 08.04.2005. Petitioner filed I.A. No.4822 of 2007 to recall the compromise decree on the ground of fraud and coercion. That application was dismissed by the impugned order dated 21.01.2009. That order was challenged in F.A.O. No.119 of 2010. That appeal also was dismissed as not maintainable vide judgment dated 24.09.2010. Thereafter petitioner has filed this Original Petition under Article 227 of the Constitution on 07.12.2010. It is contended by learned counsel that court below has taken an erroneous view that I.A. No.4822 of 2007 was not maintainable under Rule 3 of Order XXIII of the Code of Civil Procedure (for short, "the Code") and that the finding entered by the learned Sub Judge is perverse.

2. I have gone through the order under challenge. Case of petitioner is that she had entered into an agreement with one Aby George who was out of India and while filing the written statement agreeing for a compromise decree she was given the impression and made to believe that the suit is filed on behalf of the said Aby George and accordingly she agreed for the compromise decree. She stated so as P.W.1 in the court below. Respondent contended that petitioner had filed written statement admitting the contentions raised in the plaint and the suit was decreed on 08.04.2005. He deposited the balance purchase price of `.13.50 lakhs in the court below. He denied that there was fraud or coercion in the matter as pleaded by the petitioner.

3. It came out in evidence that the plaint and written statement were prepared in Malayalam and that petitioner was a one time member of the local authority. It also came out that petitioner had applied to rescind the contract (obviously under Section 28 of the Specific Relief Act) alleging that respondent refused to take steps to execute the document. She also filed application to withdraw the balance amount deposited by the respondent. There was yet another application for transferring the amount to Fixed Deposit. Court below considered these matters and held that contention of petitioner that she happened to be a party in the compromise decree on account of fraud and coercion cannot be accepted.

4. No doubt when a compromise on which the decree is passed is vitiated by any vitiating circumstance proper course is to seek the judgment and decree to be recalled by recourse to Rule 3 of Order XXIII of the Code. A separate suit is bad as specifically stated in Rule 3A of Order XXIII of the Code. Hence the view taken by the learned Sub Judge that I.A. No.4822 of2007 is not maintainable cannot be accepted. But that finding of the court below is of no consequence since learned Sub Judge has decided the application on merit as well. On going through the records I am not persuaded to think that finding entered by the learned Sub Judge is either perverse or incorrect having regard to the facts and circumstances stated above. It is also relevant to note that though F.A.O. No.119 of 2010 was disposed of on 24.09.2010 this petition is preferred only on 07.12.2010. In the circumstances I do not find reason to interfere with the impugned order.

Same Court & Year Kerala · 2010 Same Parties Lissy Antony. vs K.A.George. Same Subject Land Acquisition Same Judge Thomas P.Joseph, J.

Land Acquisition