R SUBRAMANIA IYER Vs. THANGAMMAL

JUDGEMENT

(1.) IN this petition, the petitioners allege that subsequent to the disposal of A. S. NO. 563 of 1956 by this Court, the parties have compromised the matter and they pray for the passing of a revised preliminary decree in terms of the compromise arrived at by them.

(2.) THE prior facts, which will be necessary for a disposal of this petition, can be briefly put down. Petitioners 1 and 2 Subramania Iyer and Venkataramana Aiyar and the husband of the respondent Thangammal were brothers. The respondent 's husband died on 22-7-1952, without issue. On the allegation that one of the brothers Venkataramana Iyer was a congenitally deaf and dumb person, it was averred by Thangammal the plaintiff in the suit for partition our of which the appeal arose, that he would be disentitled to get any share. On this allegation the respondent Thangammal claimed partition and separate possession of one half share. The suit w dismissed. She filed an appeal which came up before a Bench of this court comprising of Balakrishna Aiyar and Jagadisan JJ. (A. S. No. 563 of 1956 ). This court held that the second petitioner Venkataramana Iyer would be entitled to a share and decreed the suit for partition and separate possession of one third are in favour of the plaintiff. There was petition for leave to appeal to the supreme Court filed by the defendants in the suit. It was contented by the plaintiff. A report was called for whom the Subordinate Judge, Salem, regarding valuation. The learned Subordinate Judge sent a report on 6-9-1961 stating that the parties had compromised the matter. On 27-10-1961 a Bench of this court, to which one of us was a party, referred to the report to the learned Subordinate judge that since the parties had compromised, it was not necessary to lead evidence regarding the value of the properties, for the purpose of granting leave to appeal to the Supreme Court and thereupon dismissed the petition for leave to appeal to the Supreme Court. Thereafter, the present petition has been filed for passing a revised preliminary decree in terms of the compromise, by the petitioners, who are the defendants in the suit and respondents in the appeal.

(3.) IN the counter affidavit to this application filed by the respondent plaintiff, two contentions were put forward. The first one was that the compromise was obtained by deceit and false representation and would not bind the respondent. The petition was also opposed on a second ground which is a legal one. It was alleged that his court in the appeal above mentioned has passed a preliminary decree end thereafter it was not open to the parties to apply to the Court to set aside the decree and substitute another preliminary decree in its place. This court, so far as the preliminary decree, is concerned, is functus officio and there is no proceeding before it. Even the consent of the parties would not give it jurisdiction to revise the preliminary decree already passed.