IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 CRP.No. 566 of 2009() --------------------- ORDER IN I.A.1650/08 IN OS.100/2006 of SUB COURT, MUVATTUPUZHA .................... REVN. PETITIONER: PETITIONER/DEFENDANT ----------------------------------------- FR.JOHN MUNDACKAL, S/O.JOSEPH, AGED 57 YEARS, RESIDING AT "SAMSKARA", MALAYINKEEZHE, KOTHAMANGALAM. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------- JACOB PAUL, S/O.PAUL, AGED 47 YEARS, MUNDACKAL HOUSE, SOBHANAPADI, KOTHAMANGALAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.566 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 28th October, 2009 ORDER The revision is directed against the common order dated 17.7.2009 passed in I.A.Nos.1650 of 2008 and 1651 of 2008 in O.S.No.100 of 2006 by the learned Sub Judge, Muvattupuzha. The defendant in the above suit filed the above applications for setting aside the compromise decree after condoning the delay in filing the petition to set aside that decree. Suit was one for money for a sum of Rs.8,30,000/- based on a cheque. Respondent was the plaintiff in the suit. Towards purchasing of 23 acres of land from the plaintiff and his family members, according to the plaintiff, as the sale price, the defendant issued a cheque for the above sum. On the dishonouring of the cheque when presented for encashment, the suit was filed. Later, the suit was compromised and on the basis of such compromise, a decree was passed. After receiving notice in execution, petitioner/defendant moved an application for setting aside the compromise decree with a petition to condone the delay of 679 days in filing that petition. Compromise was executed in blank signed papers which were entrusted to the counsel for the plaintiff along with CRP No.566/09 - 2 - the vakkalath for withdrawing the warrant pending against him in the criminal case instituted by the plaintiff was the case advanced by the petitioner to contend that there was no compromise and the decree purported to have been passed on compromise was vitiated by fraud and, thus, not executable. Respondent/plaintiff opposed the application contending that there was no merit in the case advanced by the petitioner/defendant. The learned Munsiff, after hearing both sides, dismissed both the applications moved by the petitioner under the common order impugned in the revision. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances, I find no notice to the respondent is necessary, and it is dispensed with. When a compromise decree is challenged as vitiated by fraud, an application filed for setting aside such compromise decree cannot be considered as belated for the reason that there was delay in moving such an application, according to the learned counsel for the petitioner. Petition filed to condone the delay, in the given facts of the case, has to be treated as one filed by way of precaution, and so much so, the court below was not justified in dismissing the applications as highly belated is the further submission of the learned counsel. Learned counsel for the petitioner contending CRP No.566/09 - 3 - that the impugned order has been passed on surmises and conjunctures sought for setting it aside and remitting the matter for fresh consideration. Perusing the impugned order, I find there is no impropriety or illegality, leave alone any jurisdictional infirmity, warranting any interference in exercise of the revisional jurisdiction vested with this court. It is seen from the order that the respondent/plaintiff had instituted the suit as indigent person and after accepting notice in the proceeding, petitioner appeared through counsel. Later, indigent O.P. was converted into a suit with the plaintiff remitting 1/10th of the court fee. Even before such conversion, the petitioner defendant entered appearance and filed vakkalath, and later, a compromise petition was filed duly subscribed with the signature of the parties and also their counsel. Compromise petition was filed in the indigent O.P. and nearly nine months later, after conversion of the O.P. into the suit, the compromise was recorded by the court and a decree in terms thereof was passed in the suit. The learned Munsiff has observed in the order that no material whatsoever was placed by the petitioner/defendant to substantiate the case canvassed that he had handed over blank signed papers to the counsel for the plaintiff with a vakkalath and compromise was drafted in such papers without his knowledge. He CRP No.566/09 - 4 - had not adduced any evidence to show that the compromise was forged on blank signed papers handed over to the plaintiff's counsel as imputed. Even after receiving the notice in execution, the application for setting aside the compromise as vitiated by fraud was filed after considerable period of time, nearly two years, advancing a case that on account of his heart problem, he was bed ridden and therefore he could not engage an Advocate and take steps in time to set aside the compromise decree. No evidence was produced to show that he had suffered from any illness is also taken due note by the learned Munsiff. In that backdrop, after considering the facts and circumstances presented, the learned Munsiff concluded that the applications moved by the petitioner/defendant challenging the compromise decree as vitiated by fraud seeking for setting aside that decree after condoning the delay is bereft of any merit. Order so passed by the learned Munsiff, on the facts presented, is found to be proper and correct. There is no merit in the revision, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE