GOGINENI SUBBAYYA AND ANR. Vs. GOGGINENI GOVINDAMMA
HIGH COURT OF MADRAS
Gogineni Subbayya And Anr.
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Kuppuswami Ayyar, J. -
(1.) THE appellants in both these appeals are the judgment -debtors in O.S. No. 658 of 1930 on the file of the Court of the District Munaif of Tenali and the appeals arise out of proceedings in execution of that decree. That was a suit filed for maintenance by the wife against her husband and his brother who was the alienee from the husband in respect of the properties over which a charge was sought to be fastened for., the maintenance claimed in the suit. The suit ended in a compromise and a decree was passed on 14th February 1933 under which it was agreed that the husband and wife should live together and that in case of any disagreement between them the husband should pay a certain rate of maintenance to the wife. After the compromise they lived together for about four years and on account of subsequent disagreement the wife began to live separately. She took out execution in E.P. No. 245 of 1940 and sought to have the charged properties brought for sale for the realization of the maintenance due to her. The husband retaliated by filing a suit, No. 55 of 1939, for restitution of conjugal rights and obtained a decree therein on 19th August 1940. On an objection taken by the husband that the decree in O.S. No. 55 of 1939 was a bar to the execution petition, the trial Judge upheld the objection and dismissed E.P. No. 245 of 1940. The wife thereupon filed an appeal, No. 23 of 1941, on the file of the Court of the Subordinate Judge of Tenali against the decree in the suit for restitution of conjugal rights and the appeal was allowed. The matter was taken to this Court in Second Appeal No. 1183 of 1942 and it was dismissed on 16th October 1942. In the meanwhile the wife filed an appeal, No. 71 of 1943, on the file of the Court of the Subordinate Judge of Tenali against the order dismissing E.P. No. 245 of 1940. After the appeal against the decree in the suit for restitution of conjugal rights was allowed, the wife filed another execution petition, No. 130 of 1942, praying that it might be treated as a continuation of E.P. No. 245 of 1940 and for sale of the charged properties. The judgment -debtors contested that execution petition, their objections were overruled and the sale was directed. Against that order also, the judgment -debtors filed an appeal, No. 55 of 1943, on the file of the Court of the Subordinate Judge of Tenali. The contention of the husband was that the terms of the compromise were opposed to public policy and therefore not valid and that the compromise decree could not therefore be executed against the judgment -debtors. Appeal No. 55 was dismissed and Appeal No. 71 of 1943 was allowed with costs, the learned Subordinate Judge holding that the compromise was not invalid as being opposed to public policy and that the wife was entitled to proceed against the properties. It is as against order in these two appeals that these two civil miscellaneous second appeals have been filed. The main questions for consideration in these appeals are (1) whether the compromise decree is invalid as being opposed to public policy and could not be executed and (2) whether it is open to the respondents to raise this plea in execution proceedings.
(2.) POINT No. 2: It is contended for the respondent that, under the provisions of Order 23, Rule 3, Civil P.C., the Court before it records a compromise must inquire into the question as to whether the compromise it is asked to record is a lawful one or not and therefore the Court in this case when it passed a decree in terms of the compromise must be considered to have decided that it was a lawful one and that consequently the executing Court cannot go behind the decree and hold that the agreement was not lawful and that the decision of the Court directing the recording of the compromise would operate as res judicata and that it will not be open to the judgment -debtors who were parties to the suit to contend that the agreement was unlawful as opposed to public policy. This is not a case in which the decree is impugned as being invalid on the ground that the Court which passed it had no inherent jurisdiction. What is contended is that if the order recording the compromise and passing a decree in terms of the compromise must be taken to have impliedly decided that the agreement was lawful, that decision would be valid and binding as between the parties to the suit and therefore the judgment -debtors could not dispute it. In Chinnappareddi v. Srinivasa Rao, A.I.R. 1935 Mad. 835 it was pointed out by a Bench of this Court that there was a distinction between an inherent want of jurisdiction in a Court and a want of jurisdiction on grounds which have to be determined by the Court itself and that in the latter case even if the decision was wrong the Court was nonetheless competent to give it and that the decision will operate as res judicata. But in Rajaram v. Ganesh, (1999) 23 Bom. 131 the question had to be considered by another Bench of this Court as to whether execution of a compromise decree embodying an agreement which was unlawful could be resisted on the ground that the agreement was unlawful as being opposed to public policy and their Lordships held that such a plea could be raised. This is what is stated at page 33:
We think the appeal is well founded. There is no contention but that the sale of such an office as that now in question is opposed to public policy and ought not to be recognized or enforced by the Courts: see Rajaram v. Ganesh, (1999) 23 Bom. 131.
It is however contended that, as a decree has been passed directing the sale of the office, the Court executing the decree is not at liberty to consider its validity, but must execute it according to its terms. We cannot admit the soundness of such a contention. In Nagappa v. Venkat Rao, (1901) 24 Mad. 265 it was pointed out that when a decree is based on an agreement of compromise and when there is nothing more on the part of the Court than a mere adoption of the contract, the Court must be taken to adopt the contract with all its incidents. Under Section 375, Civil P.C., the Court had no jurisdiction to pass a decree on a compromise unless it was a "lawful" compromise.
Any terms of a contract which are opposed to public policy are invalid and will not be enforced by the Courts. So far as the decree embodied unlawful terms of a compromise it is inoperative and will not be enforced.
This is no doubt a decision on the point in question, but then the decision was given on the basis that the Court has no jurisdiction to pass a decree on a compromise which is unlawful. The question as to whether a compromise is lawful or not is a question which the Court recording the compromise was competent to decide and from the mere fact that it decided it was lawful, without deciding which it could not record the compromise, it could not be said that the Court had no jurisdiction to pass such an order. If the distinction sought to be drawn between the two classes of objections to jurisdiction referred to in Chinnappareddi v. Srinivasa Rao, (A.I.R. 1935 Mad. 835 is borne in mind then it will be a wrong decision and not a decision made by a Court without jurisdiction and such a decision will operate as res judicata. Consequently, following the later recent decision in Chinnappareddi v. Srinivasa Rao, A.I.R. 1935 Mad. 835. I find that the executing Court is barred by res judicata from contesting the lawful character of the agreement. Now coming to point No. 1, what is urged for the appellant is that the agreement between the husband and wife as to future separation was opposed to public policy and that therefore it was invalid. It is no doubt true that it has been held by Courts both in India and in England that an agreement of settlement providing for future separation is void as being contrary to public policy. But this is not a universal rule and there are several exceptions to this which depend upon the attendant circumstances. As pointed out in Halsbury's Laws of England, Edn. 2, vol. 16, at page 716:
An agreement made on a reconciliation, the object of which is to put an end to an existing separation, is not, however, void merely because it contemplates and provides for the possibility that the parties will again become separated.
(3.) AND at p. 717 in para. 2 of 1166, it is stated:
An agreement for separation will always be presumed to be legal until the contrary is proved, the burden of proving illegality lying on the person alleging it.;
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