IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.1970 OF 2017 (GM-CPC) BETWEEN:
SRI K.B.RAMACHANDRAIAH S/O. LATE K.C. BORAIAH AGED ABOUT 55 YEARS R/O. KORAGERE VILLAGE HULIYAR HOBLI CHIKKANAYAKANAHALLI TALUK TUMKURU DISTRICT – 572 214 ... PETITIONER (BY SRI RAMESH K.R., ADVOCATE) AND:
1. SRI K.B.BASAVARAJU S/O. LATE K.C.BORAIAH AGED ABOUT 53 YEARS 2. SRI K.B. SHEKARAIAH S/O. LATE K.C. BORAIAH AGED ABOUT 48 YEARS 3. SMT. CHANNAMMA W/O. LATE K.C. BORAIAH AGED ABOUT 72 YEARS RESPONDENTS 1 TO 3 ARE R/AT KORAGERE VILLAGE HULIYAR HOBLI CHIKKANAYAKANAHALLI TALUK TUMKUR DISTRICT – 572 214 ... RESPONDENTS (BY SRI K.K.VASANTH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.04.2010 (ANNEXURE-H) PASSED BY THE COURT OF THE LEARNED ADDITIONAL CIVIL JUDGE, JUNIOR DIVISION & JMFC, C.N.HALLI ON I.A.NO.3 IN OS.NO.104/1990 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the plaintiff in a partition suit in O.S.No.104/1990 is knocking at the doors of writ Court for assailing the Order dated 13.04.2010, a copy whereof is at Annexure – H whereby the learned Additional Civil Judge (Junior Division), Chikkanayakanahalli having fovoured the respondents’ application in I.A.No.3 filed under Section 152 of CPC, 1908, has amended the decree. The operative portion of the order reads as under:
“The application filed U/S 152 of CPC is hereby allowed.
The office is directed to the amendment of decree ‘A’ schedule as 17/p instead of 17 and also 32 instead of 23 in the above case in the interest of Justice and equity.”
After service of notice, the respondents having entered appearance through their counsel oppose the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, the relief needs to be granted to the petitioner, since the impugned order cannot be sustained for the following reasons:
a) the parties are related to each other; their partition suit in O.S.No.104/1990 was compromised and accordingly, a decree came to be entered on 28.03.1990 whereunder specific properties have been allotted inter alia to the petitioner-plaintiff; this is not in dispute at all;
b) the first respondent-defendant moved the subject application only on 17.04.2001 supported by evenly dated affidavit, and other application seeking amendment of the decree is also filed at the same time; thus, there is a gap of about 11 years between the passing of the decree and moving of these applications; there is absolutely not even a whisper and much less an explanation for the delay brooked in the matter; this aspect has not even adverted to by the Court below;
c) the Apex Court in a catena of decisions has held that a compromise decree although is founded on a contract, is as effective a decree as the one passed after a full-fledged trial; the compromise decree should not be loosely interfered, since it is made on the basis of an agreement between the parties; therefore, sanctity of such decrees has to be preserved; even this aspect of the matter is also not been adverted by the Court below; and, d) the first respondent in his affidavits supporting the subject applications has not stated as to how the alleged clerical mistake took place as to item numbers of the subject properties described in the suit schedule, except stating that by mistake the wrong numbers were mentioned, there is nothing beyond; that nor for substantiating the same.
In the above circumstances, this writ petition succeeds and writ of certiorari issues quashing the impugned order.
No costs.
Sd/- JUDGE KTY