GOGINENI SUBBAYYA AND ANR. Vs. GOGGINENI GOVINDAMMA

JUDGEMENT

(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:

(3.) AND at p. 717 in para. 2 of 1166, it is stated: