IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 FAO.No. 252 of 2010() --------------------- AS.36/2008 of PRINCIPAL SUB COURT,ALAPPUZHA OS.665/2006 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT/RESPONDENT/DEFENDANT: --------------------------------------------------------- R.GOVINDA NAIK,AGED 62 YEARS, NADUVILAPARAMBU, IRON BRIDGE P.O., MUULLACKAL, OLD THIRUMALA, ALAPPUZHA BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENT(S)/APPELLANT/PLAINTIFF: -------------------------------------------------------- SHIHABUDEEN, S/O.ABOOBACKER, AGED 48 YRS SHIYAS GARDEN, MULLACKAL VILLAGE, OLD TIRUMALA, ALAPPUZHA. ADV. SRI.MANSOOR.B.H. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 252 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2011. JUDGMENT Aggrieved by the order dated 31.3.2010 in A.S. 36 of 2008, the respondent before the lower appellate court has come up with this appeal. The appeal challenges the order of remand passed by the lower appellate court. 2. The facts fall within a narrow compass. It is seen that in a suit as O.S.991 of 1998 a compromise was accepted and a compromise decree was passed by the court concerned. Thereafter O.S.665 of 2006 was filed by the plaintiff pointing out that the compromise decree was a result of fraud and collusion and it was not binding on him and it may be set aside. 3. It appears that his case was that no summons was served on him and he had not engaged any counsel and he was not aware of the suit at all. Various other allegations are made in the plaint which are not very relevant for the present purpose. F.A.O.252/2010. 2 4. The defendant entered appearance and pointed out that the suit is not maintainable under Order 23 Rule 3A of the Code of Civil Procedure and the proper remedy of the plaintiff is to take recourse under Order 43 Rule 1A(2) of C.P.C. or to file an appeal against the decree in which he can assail the compromise. In other words, he can approach the court concerned which passed the earlier decree. 5. The trial court thought it fit to consider the issue of maintainability as a preliminary issue. The trial court has placed reliance on the decision reported in Meenakshi v. Manikkum (1994(1) K.L.T. 156) and held that the suit was not maintainable and the proper remedy available to the plaintiff was either to approach the court concerned which passed the compromise decree or file appeal before the lower appellate court. Accordingly the suit was dismissed. 6. The matter was carried in appeal as A.S.36 of 2008. The lower appellate court by strange reasoning reversed the finding of the trial court and held that the suit F.A.O.252/2010. 3 is maintainable and remanded the matter for further consideration. 7. Notice is seen issued on the following questions of law: “1. Whether a separate suit is maintainable to challenge a compromise decree? 2. Whether the lower appellate court was justified in going into the merits of the case when the parties had no opportunity to adduce evidence? 3. Was the lower appellate court justified in ignoring the binding precedent in 1994(1) K.L.T. 154?” 8. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in holding that the suit is maintainable without even referring to the decision of this court reported in Meenakshi's case (supra) of which reference has been made by the lower appellate court. Learned counsel also relied on the decision reported in Banwari Lal v. Chando Devi (AIR 1993 SC 1139) and contended that the suit is per se not maintainable. According to learned counsel, the F.A.O.252/2010. 4 position is made clear by Order 23 Rule 3 proviso and order 23 Rule 3A. So also Order 43 Rule 1A(2) of C.P.C.. Learned counsel pointed out that the principles laid down in the decisions cited above have not been adverted to by the lower appellate court and the decision of the lower appellate court is clearly unsustainable. 9. Learned counsel appearing for the respondent on the other hand took this court through the merits of the findings of the lower appellate court and contended that the view of the lower appellate court that the suit is maintainable is justified in the facts and circumstances of the case. According to learned counsel, the lower appellate court has prima facie formed the view that the compromise decree was the result of fraud and collusion and infact the plaintiff, who was the second defendant in the suit, was not a party to the compromise. Therefore, there are no grounds made out to interfere with the order of remand passed by the lower appellate court. F.A.O.252/2010. 5 10. I am afraid, I am unable to agree with the contention raised by the learned counsel for the respondent. The purpose and object of introducing Order 23 Rule 3 proviso and Order 23 Rule 3A C.P.C. have been discussed in detail in the decisions reported in Meenakshi's case (supra) and Banwari Lal's case (supra). Those two decisions clearly indicate the reliefs available to a person, who is aggrieved by a compromise decree. The decision leaves one in no doubt that a separate suit is not maintainable. 11. The lower appellate court has not even adverted to the decision referred to by the trial court and simply has gone on the basis that on the basis of the records the court feels that the suit is maintainable. It has not addressed itself to the question whether in view of the provisions of the Code of Civil Procedure and also the principles laid down in the decision referred to above, a separate suit is maintainable at all. Further, the exercise undertaken by the lower appellate court for going through F.A.O.252/2010. 6 the records and entering into the finding on merits is quite uncalled for. The question whether the suit is maintainable or not tried as a preliminary issue alone was germane for consideration in the appeal and that issue alone has not been decided. In the result, this appeal is allowed, the impugned judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court to reconsider the question whether the suit is maintainable in the light of the provisions and the decisions referred to above. The parties shall appear before the lower appellate court on 18.8.2011. The lower appellate court shall make every endeavour to dispose of the suit within a period of three months from the date of appearance of the parties. Forward a copy of the order to the lower appellate court. P. BHAVADASAN, JUDGE sb.