IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 17573 of 2007(P) -------------------------- OS.190/1993 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER(S): --------------- GOPINATHAN ACHARI, PADANILATHU ASARI VEEDU, PALAMEL MURI, NOORANADU VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENT(S): --------------- 1. KESAVAN ACHARI, ASARI VADAKKETHIL VEEDU, PALAMEL MURI, NOORANADU VILLAGE. 2. MOHANAN, S/O.KESAVAN ACHARI OF -DO- -DO- ADV. SRI.R.KRISHNA RAJ FOR R1 SMT.A.SALINI LAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.(C) No.17573 OF 2007 -------------------------------- Dated this the 3rd day of March 2010 JUDGMENT The writ petition is filed seeking the following reliefs. i) Pass appropriate orders setting aside Ext.P5 order and allow Exts.P3 and P4 applications seeking to review the judgment and to condone delay in making such application. ii) Issue such other directions as deemed necessary. 2. Petitioner is the plaintiff in O.S No.190 of 1993 on the file of Munsiff Court, Mavelikkara. The above suit was one for injunction, and the respondents are the defendants. That suit was compromised by the parties in a Lok Adalath under the terms agreed between the parties. With the settlement arrived, the adalath returned the reference to the court. The learned Munsiff, taking note of the settlement arrived dismissed the suit vide Ext.P2 judgment dated 02.11.1996. Ten years later, the plaintiff moved three applications before the Court which disposed the suit by Ext.P1 judgment. One of the applications, (I.A No.787/2006), was for review of the judgment, another, (I.A No.789/2006), for condoning the delay for entertaining the review petition and the third one, (I.A No.788/2006), for restoring the suit after setting aside the dismissal of the suit allowing the review petition. The respondent resisted the applications by filing objections. The W.P.(C) No.17573 OF 2007 Page numbers learned Munsiff after hearing the counsel on both sides dismissed all those applications vide Ext.P5 common order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Admittedly, before filing the present petition, the plaintiff had moved an execution petition on the basis of the decree passed as if there was an executable decree. That execution petition was resisted by the defendant, and it was dismissed. Plaintiff has also filed a fresh suit on the basis of Ext.P1 settlement entered into by the parties and that suit was also dismissed for nonprosecution. The present applications have been moved after the plaintiff had failed in his attempt to execute the terms of the settlement as if there was an executable decree and also by way of a fresh suit. Learned Counsel for the plaintiff inviting my attention to sub Rule 3 of Rule 1 of Order 23 of the Code of Civil Procedure submitted that when there is a dispute pertaining to a compromise filed before the court, the only remedy available to the parties to the proceedings is to approach the very same court which had acted upon such compromise. So much so, whatever be the earlier proceedings taken by filing an execution petition and also the suit, that would not disentitle the plaintiff in seeking for W.P.(C) No.17573 OF 2007 Page numbers modification or correction of Ext.P1 judgment when apparently the court has committed a mistake in dismissing the suit rather than passing a decree in terms of the compromise. Perusing the impugned order with reference to the submissions made by the counsel, I find there is nothing in the present case to consider it with reference to the provision covered by sub Rule 3 of Rule 1 of Order 23 of the Code. That Rule has application when the terms of a compromise or the compromise itself is challenged by one or other party and an enquiry with reference to the legality, propriety and correctness of the compromise emerge for consideration. If any such enquiry emerges, then the Rule says that enquiry can be gone into only by the court which had acted upon that compromise. The contextual facts involved in the present proceedings are clearly different. There is no dispute as to the terms of the compromise, but, only whether the court was correct in dismissing the suit rather than passing a decree in terms of the compromise. If the court had erred in dismissing the suit and not passing a decree in terms of the compromise, the petitioner should have moved at the appropriate time for rectifying that mistake. Without doing so, the plaintiff had initiated proceedings as if there was a decree and later instituted a suit as well. Being worsted in both proceedings, the present petition was filed as if the court had committed a mistake in W.P.(C) No.17573 OF 2007 Page numbers dismissing the suit, and it cannot be accepted on its face value. Needless to point out after a compromise settlement was filed before the court, it was within the authority of the court whether to pass a decree in terms of the compromise or to strike out the suit as the dispute had been settled by the parties. At any rate, when Ext.P2 judgment was passed dismissing the suit, no grievance was raised by either side that a compromise decree had to be passed in terms of the settlement and the suit should not be dismissed. In effect, there was no challenge to the dismissal so made by the court in view of of the settlement effected by the parties in the Adalath. When that be so, there is no impropriety in Ext.P5 order passed by the court below dismissing the petitions of the plaintiff. Writ petition lacks merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv