KUMARAN NAIR Vs. MARIAPPAN PILLAI

JUDGEMENT

(1.) AFTER the return of finding by the District Judge in pursuance of my order dated 17th June 1966 , counsel for the respondent raised the point that in execution proceedings from which the present second appeal arises, the appellant cannot plead that there was no valid decree against him or that he is not liable to surrender possession. The objection was raised before the District Judge and has been dealt with in the order under appeal but was unfortunately not raised before me at the time of my order dated 17 61966 calling for finding. It becomes necessary therefore to state the facts of the case a little more fully.

(2.) THE matter arises out of proceedings in execution of a decree in O. S. No. 97 of 1962, Munsiff's Court, Palghat. THE appellant was the 4th defendant therein and the respondent was the plaintiff. THE decree was for redemption of a mortgage in respect of six items of properties in favour of the 1st defendant. THE appellant was a lessee of one of the shops in item No. 6. On 30 31964, a compromise petition was filed between the plaintiff and the 1st defendant by which it was agreed that the plaintiff was to pay the panayam amount of Rs. 1,300/- to the 1st defendant and that the plaint items were to be free from the mortgage and item 6 was to be recovered, by the plaintiff from the defendants, and the arrears of rent due from the defendants 2 to 6 up-to-date were to be realised by the plaintiff. THE compromise was recorded and a decree in terms of the compromise followed. THE operative portion of the judgment, as extracted in the order under appeal reads: "razi filed by plaintiff. Plaintiff files affidavit. Suit decreed in terms of razi" THE decree which follows set out in the preambulary part thereof, that the "parties" have compromised the subject-matter of the suit, and by Clause. 3 directed that the parties do abide and be governed by the terms contained in the schedule of compromise set out in the decree. Among the terms set out in the schedule of compromise to the decree, it is enough to note only the following clause: THE decree was not appealed against. On 20-10-1964, the 4th defendant applied by IA. No. 2979 of 1964 for amending the decree in O. S. No. 97 and prayed for deletion of the clause in the decree directing surrender of possession of item 6 in the plaint schedule to the plaintiff by the defendants. This was opposed by the plaintiff-decree-holder and the following order was passed. "it is seen that the suit was decreed on a compromise petition filed by the plaintiff and the 1st defendant alone. Hence the decree is amended thus: In the first portion of the decree commencing from "this suit coming on for final hearing doth order and decree" the words "the parties have compromised" will be amended as "the plaintiff and 1st defendant have compromised. " After amendment, Clause. 3 of the decree directing that the "parties" do abide and be governed by the terms set out in the schedule of compromise, and the terms in the schedule directing surrender of possession of item 6, remained unchanged.

(3.) ON a reading of the compromise and the terms thereof as set out in the schedule to the decree in O. S. No. 97 of 1962, I am of the opinion that there was a decree for surrender of possession of item 6 and that the said decree was against the "parties" to the suit who were directed by Clause. 3 of the decree to abide and be governed by the terms of the compromise. The 4th defendant who was not a party to the compromise sought to get the offending portion of the compromise decree deleted, but from the order passed on his application for amendment, extracted earlier, it is clear that he did not succeed, except to the extent of substituting the words "plaintiff and 1st defendant" for the words "parties" in the preambulary part of the decree. ON the terms of the decree therefore, the 4th defendant was bound to surrender possession of item 6, and could not be heard to say otherwise in execution.