Hariprasad,J
Petitioner herein is the petitioner in O.P(H.M.A) No.909/2008 on the file of the Family Court, Thiruvalla filed under Section 13 of the Hindu Marriage Act, 1955 seeking divorce against the 1st respondent. She is the wife of the petitioner and the second respondent, who was impleaded as co-respondent in the proceedings, is allegedly the adulterer. It is alleged that the respondents were living in adultery. However, the court below did not adjudicate that issue as the parties had compromised the petition during the pendency of the matter. The compromise executed is produced as Ext.P2 herein.
2. The grievance of the petitioner is that when he filed an execution petition before the court below it was returned saying that no decree was produced along with the execution petition. Petitioner would contend that the court below failed to draft a decree in terms of the compromise. Ext.P2 judgment shows that the court has recorded the compromise, but dismissed the suit with a liberty to the parties to seek for joint divorce and settlement of monitory liabilities.
3. Heard the learned counsel for petitioner and the learned counsel for respondents. The prayer in the petition reads as follows:
i) Issue a direction to the Family Court Judge, Thiruvalla to draw and issue a certified copy of the decree in accordance with the judgment dated 18.11.2009 in O.P(HMA) No.909/2008 to the petitioner forthwith.
ii) Issue a direction to Family Court, Thiruvalla to dispose off E.P No.06/2013 as expeditiously as possible within a time frame fixed by this Hon'ble Court.
iii) Issue such other appropriate writ, order or direction as this Hon'ble Court deem fit and proper, in the circumstances of the case.
4. Learned counsel for petitioner submits that it is the duty of the court to draft a decree in terms of the compromise. The court below later dismissed the Execution Petition stating that no decree was produced along with the E.P. It is true that after pronouncing a judgment it is the duty of the court to draft a decree and the buck cannot be passed on to the parties.
5. Order 20 Rule 6A of the Code of Civil Procedure deals with preparation of decrees. It says that every endeavour shall be made by the court to ensure that a decree is drawn up as expeditiously as possible and, in any case, within 15 days from the date on which the judgment is pronounced.
6. Here is a case wherein the presiding officer who passed Ext.P2 judgment had vacated his office and a new officer had taken charge of the court. In that situation, the provision applicable is order 20 Rule 8 of the Code of Civil procedure which reads as follows:
“8. Procedure where Judge has vacated office before signing decree:-
Where a Judge has vacated office after pronouncing judgment but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate.”
Therefore, it is clear that the court cannot blame the parties for not producing a decree which was not drafted by the court. To this extent the petitioner's contention has to be upheld.
7. Learned counsel for the respondents would submit that as per the terms of the compromise, there was no obligation on the part of the court below to draft an executable decree. Further, it is contended that if at all a decree is drafted, it cannot be executed going by the terms of the compromise. However, we do not wish to pronounce any comment on this argument as the respondents have every right to challenge the executability of the decree before the court below. So, we leave that question open to be considered in appropriate proceedings. Learned Counsel for respondents contended that since the suit is dismissed the court below is justified in not drafting a decree.
8. Learned counsel for the petitioner submitted that the court below could not have legally decreed the original petition filed for divorce under Section 13 of the Hindu Marriage Act on the basis of a compromise. It is further contended that the court could have only dismissed the proceedings by recording the compromise. It is true, going by Order 23 Rule 3 of the Code of Civil Procedure, the burden is on the court is to consider the lawfulness of the agreement or compromise before recording the same and it is incumbent on the court to pass a decree in accordance therewith. In that respect we have to observe that the court below failed in its duty in not passing a decree in terms of the compromise. Therefore, we are of the view that the grievance of the petitioner in this regard is legally reckonable.
9. However, the prayer No.2 in the O.P seeking direction to dispose of the Execution Petition has become infructuous since the E.P now stands dismissed.
In the result the petition is allowed directing the court below to draft a decree in terms of Ext.P2 compromise and we make it clear that executability of the same will be decided in the appropriate proceedings.
V.K.MOHANAN, JUDGE A.HARIPRASAD, JUDGE vdv