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Compromise Decree In Representative Suit Void If Obtained Without Leave Of Court And Notice To Interested Parties: SC [Read Judgment]

LIVELAW NEWS NETWORK
4 Aug 2019 5:12 AM GMT
Compromise Decree In Representative Suit Void If Obtained Without Leave Of Court And Notice To Interested Parties: SC [Read Judgment]

"Such violations of Order XXII Rule 3-B of the Code of Civil Procedure cannot be said to be merely procedural, and go to the root of the matter since they deprive the affected parties of the chance to question the terms of the compromise that they are going to be bound by."

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The Supreme Court has observed that a compromise decree in a representative suit obtained without the leave of the court and without issuing notice to the parties interested would be void.

In Aliyathammuda Beethathebiyyappura Pookoya vs. Pattakal Cheriyakoya, the Court found that the parties to the decree in a suit in the nature of a representative suit did not obtain leave of the court and did not give notice to other persons who were interested in the suit as required under Order XXIII Rule 3B.

Such violations of Order XXII Rule 3-B of the Code of Civil Procedure cannot be said to be merely procedural, and go to the root of the matter since they deprive the affected parties of the chance to question the terms of the compromise that they are going to be bound by, the bench comprising Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi said.

The court disagreed with the contention that the violations of Order XXIII Rule 3B, CPC while passing the compromise decree are merely procedural and do not vitiate the decree, and that the decree should therefore be regarded as proof of breach of custom. It said

"Under Order I Rule 8, CPC, which pertains to representative suits, a person may sue or defend on behalf of others and for the benefit of others having the same interest, with the permission of the Court. The object of Order I Rule 8 is to facilitate the decision of questions in which a large number of persons are interested without recourse to ordinary procedure. Per Order XXIII Rule 3B, in order to compromise in a representative suit, it is necessary to obtain the leave of the Court. Before grant of leave to compromise, the Court needs to give notice in such a manner as it may think fit, to such persons as may appear to it to be interested in the suit"

The bench made these observations while hearing an appeal in relation to the dispute which pertains to the office of mutawalli of the Andrott Jumah mosque situated in Lakshadweep. The court also held that Mutawalli has no right in the property belonging to the waqf, and is merely a superintendent or manager-right to office of mutawalli does not divest the waqf of its public character. Moreover, the exercise of any customary right to succession will be necessarily subject to the provisions of the Waqf, the court said.

The court also observed that, even if the mutawalli belongs to the family of the waqif, he is not immune from removal in the case of mismanagement of the waqf, and must administer the waqf in accordance with the principles of common prudence and probity. Upholding the High Court judgment, the bench observed that Pattakal Cheriyakoya has been able to establish a customary right to the office of mutawalli of the Jumah mosque, under the facts and circumstances of this case, which is not unreasonable or opposed to public policy.

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