Writ Petition No. 32569 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:1795 WP No. 32569 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 32569 OF 2019 (GM-CPC) BETWEEN: BHAIRAPPA, S/O. CHENNAPPA, SINCE DEAD BY HIS LRS. 1. SMT. SAVITHRAMMA, W/O LATE BHAIRAPPA, AGED ABOUT 67 YEARS, R/AT DASARAHALLI VILLAGE, POST: AVATHI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. 2. B. CHANNARAJU, S/O LATE BHAIRAPPA, AGED ABOUT 44 YEARS, R/AT DASARAHALLI VILLAGE, POST: AVATHI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. 3. B. MUNILAKSHMAPPA, S/O LATE BHAIRAPPA, AGED ABOUT 39 YEARS, R/AT DASARAHALLI VILLAGE, POST: AVATHI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. 4. MUNINANJAMMA, D/O LATE BHAIRAPPA, Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1795 WP No. 32569 of 2019 AGED ABOUT 29 YEARS R/AT DASARAHALLI VILLAGE, POST: AVATHI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. (BY SRI. C.M. NAGABHUSHANA, ADVOCATE FOR SRI. SRIHARI, ADVOCATE) …PETITIONERS AND:
Legal Reasoning
D.S. SRIKANTAIAH, SINCE DEAD BY HIS LRS, 1. SMT. D.S. PRAMILA, W/O LATE D.S. SRIKANTAIAH, AGED ABOUT 68 YEARS, R/AT NO. 329, DIXIT ROAD, K.B. EXTENSION, DAVANAGERE - 2. 2. SMT. L.S. SHARADAMMA, W/O LATE D.S. SOMASHEKARAIAH AGED ABOUT 82 YEARS, R/AT NO. D.NO. 1000/2, 1ST MAIN, 2ND CROSS, M.C.C. 'A' BLOCK, DAVANAGERE - 4. 3. D.S. SIDDANNA, S/O LATE D.S. SOMASHEKARAIAH, AGED ABOUT 64 YEARS, R/AT NO. D.NO. 1000/2, 1ST MAIN, 2ND CROSS, M.C.C. 'A' BLOCK, DAVANAGERE - 4. 4. SMT. MANJULA ESHWAR, W/O G.M. ESHWARAIAH, AGED ABOUT 60 YEARS, - 3 - NC: 2025:KHC:1795 WP No. 32569 of 2019 R/AT NO. 732, BEHIND HMS SCHOOL, SIRA GATE, TUMKUR - 570 006. D.S. KUMAR MAHESH, SINCE DEAD BY HIS LRS. 5. MOUNA, W/O LATE D.S. KUMAR MAHESH, AGED ABOUT 69 YEARS, R/AT NO. 933, ITI LAYOUT, PAPIREDDY PALYA, 3RD CROSS, 2ND STAGE, NAGARABHAVI, BENGALURU - 560 072. 6. NIVEDITA D.K, D/O LATE D.S. KUMAR MAHESH, AGED ABOUT 39 YEARS, R/AT NO. 933, ITI LAYOUT, PAPIREDDY PALYA, 3RD CROSS, 2ND STAGE, NAGARABHAVI, BENGALURU - 560 072. 7. NEELAVARSHA, D/O LATE D.S. KUMAR MAHESH, AGED ABOUT 23 YEARS, R/AT NO. 933, ITI LAYOUT, PAPIREDDY PALYA, 3RD CROSS, 2ND STAGE, NAGARABHAVI, BENGALURU - 560 072. SMT. TEJASWINI N. GOWDA, W/O A.S. NANJAPPA GOWDA, SINCE DEAD BY HER LRS. 8. SMT. SPARSHINI, D/O LATE SMT. TEJASWINI N. GOWDA, - 4 - NC: 2025:KHC:1795 WP No. 32569 of 2019 AGED ABOUT 34 YEARS C/O SMT. MAITHRA MALLANNA R/AT "MAITHRA", 6TH PHASE, WUN EXTENSION, SHIVNAHALLI, BANGALORE - 560 044. 9. DAKSHAT GOWDA, S/O LATE SMT. TEJASWINI N. GOWDA, AGED ABOUT 32 YEARS, C/O SMT. MAITHRA MALLANNA, R/AT "MAITHRA", 6TH PHASE, WUN EXTENSION, SHIVNAHALLI, BANGALORE - 560 044. 10. SMT. MAITHRA MALLANNA, W/O K.M. MALLANNA MAILAR, AGED ABOUT 52 YEARS R/AT "MAITHRA", 6TH PHASE, WUN EXTENSION, SHIVNAHALLI, BANGALORE - 560 044. …RESPONDENTS (BY SRI. S.D.N. PRASAD, ADVOCATE FOR R1; SMT. RAKSHITHA V.N, ADVOCATE FOR SRI. K. RAGHAVENDRA RAO, ADVOCATE FOR R3; VIDE ORDER DATED 05.06.2023, SERVICE OF NOTICE AGAINST R4, R5, R6, R7, R8, R9, R10 HELD SUFFICIENT; VIDE ORDER DATED 05.06.2023, R3 TO R10 ARE THE LR'S OF DECEASED R2) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED 26.04.2019, 06.06.2019 AND 25.06.2019 PASSED IN O.S.NO.146/2005 ON THE FILE OF II ADDITIONAL SR. DN. DAVANGERE AS PER ANNEXURE-N WITH REGARD TO COMPROMISE PETITION AND ETC., - 5 - NC: 2025:KHC:1795 WP No. 32569 of 2019 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER The LRs. of defendant No.7 have filed the present Writ Petition questioning the orders dated 26.04.2019, 06.06.2019 and 25.06.2019 passed in O.S. No.146/2005. 2. The respondents herein had filed suit for partition. Defendant No.7 had purchased the property from defendant No.1. When the suit was compromised between the plaintiffs and other defendants, without considering the rights of defendant No.7, an appeal was preferred against the preliminary decree. While Regular Appeal was pending before the Appellate Court, the decree holders have filed the petition seeking amendment wherein it is stated in the compromise petition that the boundaries are not mentioned. Initially, the petitioner herein had filed an application to stay the Final Decree Proceedings and that application came to be dismissed. Thereafter, the Court had allowed the application filed under - 6 - NC: 2025:KHC:1795 WP No. 32569 of 2019 Order VI Rule 17 of CPC. The Court has observed vide order dated 26.04.2019 that - 'perused, none of them have filed objections to IA. Without boundaries, the FDP cannot be executed. Hence, the IA is allowed. Permitted to carry out amendment in the compromise petition'. Thereafter, on 06.06.2019, it was held that - 'the amendment was carried out and amended petition is filed'. On 25.06.2019, the Court has observed that - 'case is taken on board. Memo is filed. In view of memo, the amended petition filed on 06.06.2019 is withdrawn. Fresh amendment petition is filed'. 3. The facts of the case are that respondents herein had filed a suit for partition and in that the 7th defendant had purchased the property from defendant No.1. In that, a compromise decree was passed vide judgment and decree dated 19.10.2016. As the rights of the 7th defendant were affected, he filed Regular Appeal. Pending Regular Appeal, the plaintiff and other family members have filed an application seeking amendment that in the compromise petition, the boundaries were not mentioned. Initially, amendment was allowed. Thereafter, they have filed another petition to - 7 - NC: 2025:KHC:1795 WP No. 32569 of 2019 withdraw the amended petition and to file another petition. The amended petition was allowed and thereafter, when the amended petition was withdrawn, another amended petition was filed and the Court by an order dated 25.06.2019, had permitted the parties to withdraw the petition filed on 06.06.2019. Questioning those orders, the 7th defendant is before this Court. 4. Learned counsel appearing for the petitioners submits that the Court without even looking at the fact that the interest of the 7th defendant is affected, by virtue of a compromise which is entered into between the parties, had allowed the compromise and allowing such compromise petition is bad in law. Further, when once a compromise decree is passed, that is questioned in the appeal without any notice to him, filing the petition seeking amendment of the said judgment and decree and further, again withdrawing the amended petition and filing another petition are not permitted under law and the Court ought not to have entertained the same. Learned counsel relied on the Judgment of the Apex Court in the case of Ajanta LLP vs. Casio Keisanki Kabushiki Kaisha D/B/A Casio Computer Company - 8 - NC: 2025:KHC:1795 WP No. 32569 of 2019 Limited and another1. Particularly on paragraph Nos.21, 22, 23 and 24, wherein it is observed that - "21. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn-out fight. A compromise decree creates an estoppel by judgment. It is relevant to note that in Byram Pestonji Gariwala, this Court held that the appellant therein did not raise any doubt as to the validity or genuineness of the compromise nor was a case made out by him to show that the decree was vitiated by fraud or misrepresentation, While stating so, this Court dismissed the appeal 22. A consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. The Court in exercise of its inherent power may rectify the consent decree to ensure that it is free from clerical or arithmetical errors so as to bring it in conformity with the terms of the compromise. Undoubtedly, the Court can entertain an application under Section 151 CPC for alterations/modification of the consent decree if the same is vitiated by fraud, misrepresentation, or misunderstanding. 1 (2022) 5 SCC 449. - 9 - NC: 2025:KHC:1795 WP No. 32569 of 2019 23. The misunderstanding as projected by the learned Senior Counsel for the appellant between parties relates to use of "FX" or "991" as separate marks in the settlement agreement. The understanding between the parties a was with respect to "FX-991ES PLUS" as a whole and not with reference to "FX". A close scrutiny of the correspondence between the parties would show that the settlement agreement was arrived at after detailed consultation and deliberations. Thereafter, the parties were communicating with each other and they took six months to arrive at a settlement. The final settlement agreement was approved by the mediator. 24. The High Court applied its mind and passed a decree in terms of the settlement agreement dated 16-5-2019. Though, the High Court dismissed the application by refusing to entertain the application on the ground that it was filed under Section 152 CPC, we have considered the submissions of the parties to examine whether the appellant has made out a case for modification of the-decree by treating the application as one under the proviso to Order 23 Rule 3 read with Section 151 CPC. There is no allegation either of fraud or misrepresentation on the part of the respondent. We are unable to agree with the appellant that there was a mistake committed while entering into a settlement agreement due to misunderstanding. Correspondence between the advocates for the - 10 - NC: 2025:KHC:1795 WP No. 32569 of 2019 parties who are experts in law would show that there is no ambiguity or lack of clarity giving rise to any misunderstanding. Even assuming there is a mistake, a consent decree cannot be modified/altered unless the mistake is a patent or obvious mistake. Or else, there is a danger of every consent decree being sought to be altered on the ground of mistake/misunderstanding by a party to the consent decree." Relying on the above judgment, learned counsel submits that the Court has committed an error in allowing the amended petition and permitting the decree holders to add the boundaries by way of an amendment, without notice to the defendant No.7 who will be affected by such an order, is contrary to law and also against the principles of natural justice. 5. Learned counsel appearing for the respondents submits that they have in fact served the copy seeking amendment on the petitioners herein, and they have not filed their objections. Without filing of the objections as if they are not aware of such an order passed, they have come before this Court without even exhausting the remedies available to them - 11 - NC: 2025:KHC:1795 WP No. 32569 of 2019 before the trial Court. It is submitted that when he has already filed an appeal and pending the same, if the Final Decree Proceedings have to be stayed, they have to obtain necessary orders in the said Regular Appeal, which the petitioners before this Court have failed to obtain any orders as they could not obtain the orders before the Appellate Court. They have come up with an application before the Court to stay the Final Decree Proceedings and as well now they have come up before this Court questioning amendment, that is allowed by the Court by inserting the boundaries. It is submitted that without showing the boundaries, the compromise decree cannot be executed and the Court had rightly allowed the application. It is submitted that the writ petition is of the year 2019 and the petitioner by filing the writ petition successfully stayed the entire Final Decree Proceedings. Though he is not successful in obtaining interim orders before the appellate Court, but in this writ petition he successfully stalled the proceedings by obtaining the interim orders. He submits that there is no illegality with the order impugned before this Court and the Writ Petition is liable to be dismissed. - 12 - NC: 2025:KHC:1795 WP No. 32569 of 2019 6. Having heard the learned counsel on either side, perused the material on record. Whether the trial Court was right in permitting the parties to compromise the matter and also in passing a compromise decree? whether the 7th defendant's rights are involved, is a matter of adjudication before the appellate Court? If the 7th defendant's rights will be affected and the Final Decree Proceedings are concluded, then it is for the petitioners to persuade the First Appellate Court where the Regular Appeal is pending. Then coming to the amendment, the notice and other things that are urged before this Court. By way of this amendment, according to the parties, the boundaries are not mentioned in the compromise memo and by way of an amendment, they want to show those boundaries. Otherwise, the Executing Court cannot execute the decree. As far as the preliminary decree is concerned, it is not stayed by the Court. Now even if the amendment is allowed by the Court, the petitioners are not remediless. This amended decree can always be questioned by them before the appellate Court, where the appeal is pending and on that ground, they
Decision
cannot stay the Final Decree Proceedings in the Writ Petition or before the Executing Court when their remedy lies elsewhere. - 13 - NC: 2025:KHC:1795 WP No. 32569 of 2019 In the considered opinion of this Court, if the amendment is allowed, no prejudice would be caused to the petitioners and it is always open to them to question the same before the appellate Court, where the Regular Appeal is pending. Accordingly, this Court is passing the following: ORDER The Writ Petition is dismissed. All IAs. in this writ petition shall stand closed. (i) (ii) SD/- (LALITHA KANNEGANTI) JUDGE KA List No.: 1 Sl No.: 42 CT: BHK