SALI P G Vs. SUNIMOL G MANAPPURATHUMALIYIL HOUSE

JUDGEMENT

(1.) Petitioners are the defendants in O.S.No.230 of 2001 of the Munsiff's Court, Ettumanoor in a suit for mandatory injunction. The petitioner challenge Ext.P9 order. This Court, after hearing both sides, by judgment dated 19.09.2019 dismissed the original petition. The petitioner filed R.P.No.959 of 2019 on the ground that the main argument advanced by the revision petitioner based on ground no:B and based on two decisions of the Supreme Court was not considered by this Court. On a finding that, the contention of the petitioner was justified, the judgment of this Court dated 19.09.2019 was reviewed and recalled. Thereafter, both sides were heard in extenso.

(2.) In the above suit, plaintiff, who is the respondent herein, sought a direction to call upon the petitioners herein who are the defendants to shift the residence from the plaint schedule property. After trial, the suit was dismissed. It was carried in appeal by the plaintiff before the Additional District Court, Kottayam as A.S.No.156 of 2004. Pending the appeal, the dispute was settled in Adalath on 25.03.2006. Ext.P3 award was passed. As per the compromise, amounts were to be paid to the petitioners by the respondent within the stipulated time. The amounts were not paid. After five years, execution was laid as E.P.No.7 of 2011 in O.S.No.230 of 2001. Petitioners herein, who are the judgment debtors, entered appearance and raised objection regarding the executability of the decree. It was contended that, the above decree was not enforceable. It was contended that the amounts due to be paid to the judgment debtors were not paid by the decree holder. The claim was barred by limitation. There was absolutely nothing to show that the petitioners herein were ready and willing to perform their part. It was also contended that the compromise entered into during the pendency of the appeal was only an agreement between the parties and in case of failure of one party to perform , it will frustrate the contract.

(3.) Respondent/decree holder contended that, she was ever willing to perform her part of the contract, to pay the money and to discharge the liability. However, judgment debtors never agreed to receive the money and to surrender vacant possession of the building. Hence, it was requested that the decree holder may be permitted to deposit the above amount.