IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 AS.No.112 of 2002(E) & CROSS OBJECTION --------------------- (AGAINST THE JUDGMENT AND DECREE DATED 31.07.2001 IN O.S.No.129/1998 OF PRINCIPAL SUB COURT, N.PARAVUR) APPELLANTS/DEFENDANTS: ------------------------------- 1. SUNIL, S/O. PULLARKATTU LAKSHMANAN, MADAPLATHURUTHU MURI, MOOTHAKUNNAM VILLAGE. 2. BINI, W/O. SUNIL, DO. VILLAGE. BY MR.DINESH R.SHENOY, ADVOCATE. RESPONDENTS/PLAINTIFFS: -------------------------------- 1. SULAJA, W/O. K. DIVAKARAN, DISNEY HOUSE, JUDGES CORNER, VAZHAKKALA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 2. SHYJA, W/O. PRAKASAN, PANIKKOTH VEEDU, VYNUR DESOM, VALAPPAD, THRISSUR DISTRICT. 3. GIRIJA, W/O. SUBRAMANIAN, ABHAYAM, KALAPURACKAL VEEDU, PERINJANAM, DO. DISTRICT. 4. SHEEBA, W/O. HARIDASAN, MELAEPURAIKKAL VEEDU, BLANGAD, CHAWAKKAD, DO. DISTRICT. BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE. MR. K. JAYAKUMAR, ADVOCATE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. No.112/2002 & C.O Order on C.M.P.No.1033/2002 in A.S.No112/2002 Order on I.A.No.942/2008 in A.S.No112/2002 Dismissed. Sd/- Sd/- KURIAN JOSEPH S.S.SATHEESACHANDRAN 11.03.2009 JUDGE JUDGE // True Copy // P.A. to Judge. smp KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- A.S. No.112 OF 2002 & Cross Objection --------------------------------------- Dated this the 11th day of March, 2009. J U D G M E N T Satheesachandran, J. The appeal has been filed against the judgment and decree dated 31.07.2001 in O.S.No.129/1998 passed by the learned Principal Sub Judge, North Paravur. The defendants are the appellants, and the suit was one for partition. Receiving notice in the appeal, the respondents entered appearance and filed cross objections to the decree to the extent they are aggrieved in the allotment made by the court below. 2. The appeal being taken up today for hearing, learned counsel for the appellants reported “no instructions”. However, the learned counsel for the respondents urged that the cross objections filed in the appeal may be heard and disposed of on merits. A.S.No.112/2002 & C.O 2 3. On perusal of the decree and judgment, we notice that it has been passed on a compromise entered by the parties. Though the learned Sub Judge has entered findings on the issues raised in the suit which in the given facts were quite unnecessary, it is seen that the decree had been passed on the basis of the compromise entered by the parties and in effect for all purposes it was a consent decree. In the operative portion of the judgment, it is specifically stated that the preliminary decree had been passed on the basis of the compromise dated 06.04.1998 entered by the parties to the suit and further that the compromise would form part of the decree. Evidently, whatever be the discussions made by the court on the issues raised, the decree was essentially one recording the compromise, on the basis of the agreement arrived at by the parties, resolving the disputes, and no decision on adjudication was taken by the court. 4. If the decree is on the basis of consent, needless to point out it is not a decision arrived at by the court but only recording of the compromise. If that be so, the inescapable conclusion follows that the appeal moved by one of the parties to the suit, herein the defendants, against the decree passed on the A.S.No.112/2002 & C.O 3 basis of the consent of the parties will not lie. Section 96(3) of the Code of Civil Procedure states that no appeal shall lie from a decree passed by the court with the consent of the parties. Where it is found that the appeal impugned arises from a consent decree, it follows that such an appeal is not maintainable. 5. However, the learned counsel for the respondents- plaintiffs in the suit persisted with his plea to have a consideration of the cross objections submitting that the operative portion of the judgment as well as the decree drafted is not strictly in tune with the compromise entered by the parties, which is given expression to in paragraph 8 of the impugned judgment of the court below. The appeal having been entertained on the file of this Court and the time lapse taken after the commencement of the lis are highlighted by the learned counsel to invoke the jurisdiction of this Court for disposal of the cross objections on merits. The decree passed by the court below does not correctly reflect the compromise entered by the parties and that mistake is apparent even from a cursory perusal of the terms of the compromise and the operative portion of the judgment is pressed upon by the learned counsel to persuade us A.S.No.112/2002 & C.O 4 for a decision on the cross objections to mete out complete justice to the parties. 6. We are afraid that the circumstances canvassed by the learned counsel even if somewhat appealing and to some extent deserve sympathetic consideration cannot at all be appreciated as we notice the legal bar interdicting the court from entertaining the cross objections and entering a decision on such objections. Indisputably, the challenges raised in the appeal as well as the cross objections arise from a consent decree and the statutory bar covered by Section 96(3) of the C.P.C applies with full force interdicting the entertainment of such an appeal. 7. When an appeal preferred against the consent decree is found to be incompetent and not entertainable, it is not at all possible or permissible to look into the cross objections moved by the respondents in that appeal. Cross objections at the instance of the respondents is entertainable only if the appeal is found competent and maintainable. If at the inception itself the appeal is found to be not maintainable, the cross objections filed in that appeal has also to be treated as incompetent and not maintainable. If the appeal is found to be incompetent and thus A.S.No.112/2002 & C.O 5 not maintainable, the cross objections too has to be rejected as not maintainable. Exceptions enabling the entertainment of the cross objections despite dismissal of the appeal are spelt out under Order XLI Rule 22(4) of C.P.C which provides hearing of cross objections where appeal is dismissed for default or is withdrawn. However, if the dismissal of the appeal is for the reason that it has abated or it has been filed out of time or for any reason barring its entertainment under law, it follows that there is a bar to the hearing of the cross objections moved in that appeal. If the appeal is incompetent and not entertainable, it essentially is a case where the appeal is not put before the court for adjudication and that be so, the cross objections moved in such an appeal cannot at all be entertained. Even in a case where the appeal is dismissed for insufficiency of court fee, there cannot be any entertainment of cross objections as the court permits under Order XLI Rule 22(4) of C.P.C only two exceptions, the appeal is withdrawn or is dismissed for default. Having found that the appeal arising from the consent decree is barred by law and thus incompetent, we hold that the cross objections moved A.S.No.112/2002 & C.O 6 by the respondents in the appeal is also incompetent and not maintainable. 8. We have noticed that there is some force in the submissions made by the learned counsel that the terms of the compromise are not correctly reflected in the operative portion of the judgment and also in the decree passed by the court below. Though it has been stated that the terms of the compromise form part of the decree, it is seen that in the decree the terms of the compromise dated 06.04.1998 are not incorporated. 9. It is open to any of the parties to the suit to move the court below for correcting the operative portion of the judgment and also the decree in tune with the compromise by filing an application for review as provided by law. Since the parties have been bonafide prosecuting the appeal and cross objections, we make it clear that if any review application is moved with petition to condone delay, the court below shall give due allowance to the period the appeal and cross objections were prosecuted before this Court. A.S.No.112/2002 & C.O 7 Subject to the observations made as above, the appeal is dismissed and the cross objections rejected directing both sides to suffer their costs. KURIAN JOSEPH JUDGE S.S.SATHEESACHANDRAN JUDGE smp A.S.No.112/2002 & C.O 8 KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. A.S. No.112 OF 2002 J U D G M E N T 11.03.2009