IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5459 of 2009(O)
1. P.V KRISNAN KUTTY,
... Petitioner
Vs
1. BHAVANIKUTTYAMMA,
... Respondent
For Petitioner :SMT.A.SREEKALA
For Respondent :SRI.B.KRISHNA MANI
The Hon'ble MR. Justice K.T.SANKARAN
Dated :20/03/2009
O R D E R
K.T.SANKARAN, J.
---------------------------------------------
W.P.(C).No.5459 of 2009
---------------------------------------------
Dated this the 20th day of March, 2009
JUDGMENT
The defendant in O.S.No.738 of 2004 on the file of the
court of the Munsiff of Kottayam is the Writ Petitioner. He
challenges the order passed by the trial court dismissing his
application under Order IX Rule 13 of the Code of Civil
Procedure and the judgment of the appellate court in
C.M.A.No.95 of 2008. The ex-parte decree was passed on
31.3.2006. The petitioner applied for setting aside the ex-parte
decree. The trial court dismissed that application. On appeal,
the appellate court confirmed the order of the trial court. At the
time when the Writ Petition came up for admission, delivery of
the property was sought to be stayed. An interim order was
passed on 18.2.2009 which reads as follows:
“After having heard the learned counsel for the
petitioner, I do not think that this is a case where the
Writ Petition can be entertained on the merits. The
learned counsel for the petitioner, however,
submitted that if the decree is executed and the
boundary is fixed as per the terms of the decree, the
petitioner would lose a considerable part of his
residential building. The case of the plaintiff is thatWPC No.5459/2009 2
while she was outside Kerala, the defendant
trespassed upon a portion of her property and
constructed the house. The learned counsel
submitted that the petitioner is keen on settling the
matter with the respondent and if in the meanwhile,
the portion of the house which may be delivered to
the respondent is to be demolished, he would be put
to great prejudice.
Urgent notice before admission to the
respondent by speed post returnable in ten days.
There will be no stay of delivery. However, the
respondent shall not demolish the portion of the
building in the property which she may take delivery
of.”
2. The respondent appeared. After several rounds of
talks, the parties have settled the matter. The compromise
petition is signed by the parties and their counsel. The
compromise is accepted.
3. As per the decree, the plaintiff’s title and possession
over the plaint A schedule property was declared. The boundary
of the plaint A schedule property is fixed as stated in the decree.
The portion having an extent of 28.5 sq.mtrs. in the A schedule
property was permitted to be recovered from the possession of
the defendant. The defendant was restrained by a permanent
prohibitory injunction from committing any acts of waste in the
plaint A schedule property. Now, as per the terms of the
compromise, the parties have agreed to execute an exchange
WPC No.5459/2009 3
deed by which the portion of property sought to be recovered as
per the decree shall be retained by the Writ Petitioner/defendant
and another similar extent from another portion of the plaint B
schedule property shall be assigned in favour of the plaintiff.
The various terms and conditions of the compromise are also
stated in the compromise petition. The compromise petition is to
be worked out by appointing a Commissioner. It is submitted by
both parties that accepting the terms of compromise, the same
can be treated as a compromise decree. Accordingly, the
compromise shall be treated as a compromise decree. The
original compromise petition shall be forwarded by the Registry
to the executing court after retaining a photo copy in the file.
The executing court shall pass appropriate orders in terms of the
compromise.
The Writ Petition is disposed of as above.
K.T.SANKARAN,
JUDGE
csl