K.N.Govindan Kutty Menon vs C.D.Shaji, Divine Associates ... on 24 November, 2009

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 33013 of 2009(O)

1. K.N.GOVINDAN KUTTY MENON,

... Petitioner

1. C.D.SHAJI, DIVINE ASSOCIATES PHOTOSTAT

... Respondent

For Petitioner :SRI.S.K.BALACHANDRAN

For Respondent : No Appearance

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

Dated :24/11/2009

O R D E R

S.S. SATHEESACHANDRAN, J.

- - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 33013 of 2009

- - - - - - - - - - - - - - - - - - - - - - - - - Dated: 24th November, 2009

JUDGMENT

The Writ Petition is filed seeking mainly the following reliefs:

1. To call for the entire records leading to Exhibit P2 and issue an order of certiorari quashing the same.

2. To issue a writ of mandamus or any other appropriate writ, order or direction directing the Principal Munsiff's Court, Ernakulam to entertain the execution petition filed by the petitioner to execute the Exhibit P1 award.

2. Petitioner filed a complaint against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. Complaint was referred to the Lok Adalat where it was settled by the parties culminating in passing of an award. The respondent under the settlement agreed to pay the cheque amount of Rs.5500/- in five equal monthly instalments of Rs.1100/-. The respondent committed default in making the instalment payment. Petitioner, thereupon, filed an execution petition before the Munsiff Court seeking the execution of the award passed in the Lok Adalat. The learned Munsiff declined to receive the execution petition on the file of the court for the reason W.P.C.No.33013/09 - 2 -

that the award passed by the Lok Adalat on reference from the Magistrate Court cannot be construed as a decree executable by the civil court. P2 is the order passed by the learned Munsiff. Propriety and correctness of P2 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.

3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. Inviting my attention to Section 21 of the Legal Services Authorities Act, 1987, learned counsel for the petitioner vehemently contended that every award passed by the Lok Adalat shall be deemed to be a decree executable by a civil court. Reliance was also placed on Thomas v. Thomas Job (2005(3) KLT 1042(SC), Merlin v. Yesudas (AIR 2007 Kerala 199), Sreedharan T. v. S.I. of Police (ILR 2009(1) Ker. 111) and State of Punjab v. Jalour Singh (AIR 2008 S.C. 1209) to contend that the settlement or compromise agreed by the parties in the presence of the Lok Adalat is an executable order, and it has to be construed as a decree passed by a civil court.

W.P.C.No.33013/09 - 3 -

4. The question posed for consideration is when a criminal case referred to by the Magistrate Court to Lok Adalat is settled by the parties and an award is passed recording the settlement, can it considered as a decree of a civil court and, thus, executable by that court. Section 21 of the Legal Services Authorities Act, 1987, reads thus:

"21. Award of Lok Adalat:- (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub- section (1) of section 20, the court fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870)."

(Sub-section (2) omitted as not relevant).

Every award passed by the Lok Adalat has to be deemed to be a decree of a civil court and as such executable by that court is the argument canvassed by the learned counsel for the petitioner. I cannot agree with the proposition. If that be so, Section 21 need not have any further provision that the award of the Lok Adalat shall be W.P.C.No.33013/09 - 4 -

deemed to be an order of any other court, which prima facie, indicate that all awards cannot come within the ambit of a decree of a civil court. When a reference is made from the civil court or criminal court to the Lok Adalat, that authority is exercising the powers enjoyed by the reference court in passing an award. In a complaint referred from a criminal court, if it is settled and an award is passed in the Lok Adalat, such award will not acquire the characteristics of a decree of a civil court. To say so is patently erroneous as the Lok Adalat constituted under the Legal Services Authorities Act on a case referred from a court civil or criminal can only pass an order which the reference court is competent to pass in the matter. A criminal court cannot pass a decree. When a criminal case is referred to the Adalat and it is settled at the Adalat, the award passed has to be treated only as an order of that criminal court and it cannot be executed as the decree of a civil court. The decisions relied by the learned counsel deal with matters unconnected to the dispute projected in the present case and it has no application in answering the question canvassed for consideration. Situation in the present case might have been different if on the reference made by the criminal court, an independent application had been moved by the W.P.C.No.33013/09 - 5 -

complainant for the amount covered by the dishonoured cheque and an award had been passed by the Lok Adalat on such an application, after its registration, following the procedural requirements applicable. Withdrawal of the complaint referred to the Lok Adalat could also have been included as one of the terms of the settlement of that independent application when such an award is passed. An award passed on such an independent application irrespective of the reference of the complaint from the criminal court could have been executed as a decree as if the same had been passed by a civil court. An award passed by the Lok Adalat on reference of a criminal case by the criminal court, as already indicated, can only be construed as an order by the criminal court and it is not a decree passed by a civil court. I do not find any impropriety or illegality in P2 order passed by the learned Munsiff declining the request of the petitioner to execute the award passed by the Lok Adalat on reference of a complaint by the criminal court. Writ Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE