SHIBU Vs. BEENA

JUDGEMENT

(1.) Strange are the ways of parties in dealing with the case.

(2.) A suit was instituted as O.S.No. 761/2004 wherein the petitioner herein was the plaintiff and the respondent was the defendant. This Court is given to understand that the suit was decreed. However, while the suit was pending, it would appear from the records that there was an order in an interlocutory application which was challenged by the respondent herein and it was pending as C.M.A.No. 16/2007. It is interesting to note that the suit was decreed on 19.01.2007. However the C.M.A. was disposed of on 16.07.2008. It escapes once understanding that after the suit has been decreed, how the C.M.A. could survive for consideration. But whatever that be, parties chose to enter into a compromise in the C.M.A. and as per the compromise entered into, C.M.A. was disposed of. Thereafter complaining of violation of the decree in the suit, decree holder sought execution against judgment debtor. The court below found that the decree cannot survive in view of the compromise entered into between the parties and noticed that the appellate court while disposing of the C.M.A. had recorded the compromise. The court below therefore held that the remedy of the petitioner is to enforce the terms of the compromise, on the basis of which C.M.A. was disposed of.

(3.) The learned counsel appearing for the petitioner contended that the court below was not justified in dismissing his petition as he is entitled to execute the decree.