V N SREEDHARAN Vs. BHASKARAN

JUDGEMENT

(1.) Two brothers, residing under the same roof, are involved in this litigation over a plot of land in which their residential building is situate. Their mother was also a party in the suit as second respondent, but she bade farewell to her terrestrial terrain on 28-2-1980 without waiting to see the remaining portions of the fight between her two children. The suit was filed by the elder brother in 1977 for partition of his 1/3 share. On 18-10-1979, the parties filed a compromise petition in the suit and a decree was passed in terms of the compromise on that day itself. As the second defendant is not alive now, I shall refer to the parties as the plaintiff and defendant respectively.

(2.) As per the terms of the compromise, the plaintiff agreed to release all his rights and interests in the property, if the defendant pays to him a sum of Rs. 6,250/- on or before 6-2-1980, and the defendant on bis part has agreed to release all his rights and interests in the property in the event of his failure to make the payment as aforesaid and in that case the plaintiff would pay him an amount of Rs. 5,250/-. Both sides agreed that the rights of their mother over this property would devolve on the plaintiff and defendant equally. There is a further term in the compromise that the plaintiff would vacate from the building in the suit property within two months from ' the date of the compromise. These are the material clauses mentioned in the compromise petition.

(3.) The plaintiff had filed an Execution Petition on 14-7-1980, contending that the defendant had failed to pay the sum which be bad undertaken to pay within 6-12-1980, and the plaintiff on his part has offered to pay the sum which he has agreed as per the terms of the compromise. The prayer in the Execution Petition is to get the release deed executed through court in execution proceedings. The defendant resisted the Execution Petition on various grounds, among which the important are that the defendant was willing and ready to pay the sum which he has to pay and that he went to the office of the registry on 6-2-1980 itself for the purpose of getting a release deed executed by the plaintiff. The defendant's stand is that the plaintiff did not turn up to receive the amount as the plaintiff was unable to vacate from the building situated in the property which is a condition precedent for receiving the sum from the defendant. His further contention is that the plaintiff has required an extension of period for six months more to vacate from the building. According to him, it was this subsequent development which had rendered the execution of the release deed impossible. Yet another ground on which the defendant resisted the Execution Petition is that the compromise decree is not executable in as much as it consists of only a contract for sale of the property and a separate suit for specific performance alone is the remedy to enforce it.