IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 RP.No. 837 of 2009() -------------------- AGAINST THE ORDER IN CRP.645/2004 DATED 07/02/2008 .................... REVIEW PETITIONER(S): REVISION PETITIONER --------------------------------------------------------------------- P.H.SAFIYA, W/O. C.M.MOHAMMED KUNHI DEENAS NAGAR, THALANGARA, THALANGARA VILLAGE P.O.THALANGARA, KASARAGOD. BY ADV. SRI.SANTHEEP ANKARATH SRI.ANIL THOMAS(T) SMT.K.V.RESHMI RESPONDENT(S): --------------- 1. C.M.FATHIMABI, W/O. P.P.MOIDEENKUNHI, NAIMMARAMOOLA, MUTTATHODY VILLAGE, KASARAGOD TALUK .P.O., THALANGARA, KASARAGOD. 2. SAHIDA, D/O. P.P.MOIDEENKUNHI, NAIMMARAMOOLA, MUTTATHODY VILLAGE KASARAGOD TALUK, P.O.THALANGARA, KASARAGOD. 3. SAJIDA, D/O. P.P.MOIDEENKUNHI, NAIMMARAMOOLA, MUTTATHODY VILLAGE, KASARAGOD TALUK, P.O., THALANGARA, KASARAGOD. 4. MOHAMMED SAMEER, S/O. P.P.MOIDEENKUNHI NAIMMARAMOOLA, KASARAGOD TALUK, P.O., THALANGARA, KASARAGOD. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- R.P.No.837 of 2009 --------------------------------------------- Dated this the 22nd day of July, 2010 ORDER The revision petitioner in C.R.P.No.645 of 2004 has filed this Review Petition seeking to review the order dated 7th February, 2008. 2. The revision petition was filed by the plaintiff in O.S.No.68 of 1996 challenging the order dated 17.11.2003 in I.A.No.191 of 2003 by which the court below set aside the compromise decree passed in the suit. The suit was restored to file to be decided on the merits. 3. The suit was filed by the Revision Petitioner for partition, claiming a half share. The property was acquired in the name of the plaintiff and the first defendant. The first defendant is the sister of the husband of the plaintiff. By the compromise, a decree was to be passed for half share to the plaintiff after cancelling the sale deed executed by the first defendant in favour of her children, defendants 2 and 3. On the same date on which the compromise petition was signed by the parties, another agreement was executed by the husband of the RP 837/2009 2 plaintiff, husband of the first defendant and the son of the first defendant, who is the 4th defendant in the present suit. Mention is made about that agreement in the compromise. The agreement executed among the husband of the plaintiff, the husband of the first defendant and the son of the first defendant was marked as Ext.A1 in the present proceeding. Ext.A1 agreement dated 30.6.1998 would show that consideration for the compromise in the suit is fulfillment of the conditions in Ext.A1. Without Ext.A1 being fulfilled, the compromise would have no existence. The consideration for the compromise in the suit being the consideration mentioned in Ext.A1 agreement dated 30th June, 1998, the compromise would fail, if the consideration in Ext.A1 fails. Ext.A1 is an integral part of the compromise. That agreement was not produced along with the compromise. 4. The learned counsel for the Review Petitioner submitted that it was found by the trial court in the final decree application and by the High Court in the Revision which arose out of the final decree proceedings that Ext.A1 agreement (Ext.B1 marked therein) was not part of the compromise and that RP 837/2009 3 finding would operate as res judicata in the present proceeding. The present proceeding is to set aside the compromise decree on the ground of fraud and on other grounds. The court found that the compromise cannot be sustained. When it is alleged by one party that the very compromise is unlawful and it is liable to be set aside, a finding in the earlier proceedings arising out of the final decree passed on the compromise would not be binding on the parties and it cannot be said that the said finding would operate as res judicata against the petitioner in the present proceeding for setting aside the preliminary decree. If the preliminary decree goes, the final decree would have no existence and it would fall to the ground. If so, any order in the final decree proceedings would not be binding as res judicata in a proceeding initiated by one of the parties to the suit to set aside the preliminary decree pointing out vitiating circumstances. If it is held that the preliminary decree is bad and liable to be set aside, all the findings rendered in the final decree proceedings would vanish. If so, such a proceeding could not be projected as a finding constituting res judicata. This contention can be examined in another angle. Let us take it that RP 837/2009 4 no contention was taken by the defendants in the suit challenging the maintainability of the final decree proceedings and let us take it that a final decree was passed. Later, proceedings were initiated to set aside the preliminary decree on the ground of fraud or other vitiating circumstances. Could the plaintiff say that the defendants who wanted to set aside the preliminary decree are barred by constructive res judicata in view of the fact that they did not raise that contention in the final decree proceedings? The answer would be an emphatic 'no'. If so, the contention which is now raised by the petitioner that the order in the final decree application and the revision arising there from would constitute as res judicata barring the present application to set aside the preliminary decree, is unsustainable. 5. The learned counsel for the petitioner contended that the only ground on which the preliminary decree was sought to be set aside was that it was vitiated by fraud. The court below held that fraud as such was not proved. However, on a consideration of all the facts and circumstances of the case, the court below held that Ext.A1 agreement is void. Ext.A1 being a part of the compromise, the preliminary decree, which was RP 837/2009 5 passed on the basis of the compromise, would be inexecutable. The court below also found that Ext.A1 agreement is void as the parties were under a mistake of the essential facts of the agreement. The parties knew well what their contentions were. They have also adduced evidence on all the aspects touching upon the compromise and the agreement. The defendants wanted to set aside the preliminary decree based on the compromise on the ground of vitiating circumstances. On that basis, the parties went to trial. The court could arrive at different findings on the basis of that main contention. The court considered the evidence and arrived at the finding that the parties were under a mistake of fact in Ext.A1 and therefore, it is void and that Ext.A1 agreement being an integral part of the compromise, the compromise could not be acted upon and made a basis for passing the preliminary decree. I do not think that the Review Petitioner was prejudiced in any way by any alleged deficiency in the pleadings. 6. There is yet another ground on which it could be held that Ext.A1 forms part of the compromise. The fourth defendant in the suit is party No.3 in Ext.A1 agreement. He is the son of RP 837/2009 6 the first defendant. He is bound by Ext.A1 agreement. The first defendant had transferred the property to her children, defendants 2 and 3. Defendants 2 and 3 had transferred the property to the fourth defendant. The fourth defendant, as per the terms of the compromise, conceded for a half share in the property to the plaintiff. The fourth defendant was a party to the compromise and a party to Ext.A1 agreement. By conceding to the compromise decree, he would lose his absolute title to the property, to the extent of the half share of the plaintiff. If the compromise decree is set aside, he would stand to gain and he could retain the property unless it is otherwise held at the trial that the document is vitiated. If so, the fourth defendant being a party to the agreement and a party to the compromise, I am of the view that Ext.A1 agreement forms an integral part of the compromise and the parties are bound by the compromise. Even going by Rule 3 of Order 23, it is clear that the compromise need not confine to the subject matter of the suit. The subject matter of the suit as well as other matters were part of composite terms of the compromise between the parties. On the failure of Ext.A1, naturally the compromise also would fail. The court below RP 837/2009 7 accepted this and held that the compromise preliminary decree is liable to be set aside. I do not find any ground to review the order dated 7th February, 2008 passed in the CRP. There is no mistake or error apparent on the face of the record which warrants a review of the order. There is no sufficient reason to allow the Review Petition. Accordingly, the Review Petition is dismissed. No order as to costs. K.T.SANKARAN, JUDGE csl