LOKANATHAN Vs. NARAYANASWAMY

JUDGEMENT

(1.) THE defendant in the original suit is the appellant in the second appeal. The appellant and the respondent are the sons of Late Velayudham. The respondent herein filed the suit O.S. No.75 of 2004 on the file of the trial Court for partition and separate possession of his half share in the suit properties and for mesne profits. The learned trial Judge granted a preliminary decree for partition by judgment and decree dated 26.04.2005. The appellant herein filed an appeal in A.S. No.86 of 2005 on the file of the lower appellate Court. The lower appellate Court by its judgment and decree dated 18.07.2007 confirming the decree of the trial Court, dismissed the appeal. As against the said decree of the lower appellate Court dated 18.07.2007, the present second appeal has been filed.

(2.) VELAYUDHAM , the father of the appellant and respondent, claimed to be the absolute owner of the properties that are the subject matters of the suit from which the present second appeal has arisen and also all other properties. Contending that all those properties were his self -acquisitions and thus they were his absolute properties, Velayudham filed a suit in O.S. No.104 of 1984 on the file of the Sub - Court, Virudhachalam for a declaration to the said effect and for a permanent injunction against his sons namely, the appellant and the respondent herein. The said suit ended against Velayudham and it was dismissed by the Sub -Court, Virudhachalam by a decree dated 13.01.1988, a certified copy of which is Ex.A1. Challenging the said decree dismissing the suit O.S. No.104 of 1984 filed by him for declaration and injunction, Velayudham filed an appeal in A.S. No.50 of 1988 on the file of the District Court, Cuddalore. In the said appeal, a compromise was effected and a compromise decree dated 03.02.1989 came to be passed based on a compromise memo signed by the parties to the said case containing the following clauses:

(3.) THE suit was resisted by the appellant/defendant contending that the compromise decree passed in A.S. No.50 of 1988 (arising from O.S. No.104 of 1984) was not acted upon; that even otherwise in view of the compromise decree, the present suit filed for giving effect to the terms of the compromise decree without seeking execution of the compromise decree was not maintainable and that the suit filed several years after the passing of the compromise decree was hopelessly barred by limitation.