M VELAYUTHAM Vs. S P PRABHAKARAN

JUDGEMENT

(1.) THIS civil revision petition is preferred against the order dated 22.08.2008 passed by the learned VI Assistant Judge, City Civil Court, Chennai in I.A.No,5527 of 2008 in O.S.No.1330 of 2008.)Animadverting upon the order dated 22.08.2008 passed by the learned VI Assistant Judge, City Civil Court, Chennai in I.A.No,5527 of 2008 in O.S.No.1330 of 2008, this civil revision petition is focussed.

(2.) HEARD the learned counsel for the petitioner as well as the learned counsel appearing for respondents. 3. A summarization and summation of the facts involved in this case, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus: The petitioner earlier filed O.S.No,5548 of 2006 for recovery of money and during the pendency of the suit, it appears that the following endorsement was made on the plaint."Agreed to withdraw the suit on compromise to accept the amount of Rs.90,000/- from the total amount of Rs.1,40,000/-"whereupon, the court passed the following judgment:"Suit for recovery a sum of Rs.1,40,000/- with interest at 18% p.a and for costs.Having advanced on petition. Both parties present. Suit is dismissed as settled out of Court. Refund - of court fee to the plaintiff less 5%."While so, according to the petitioner, the defendant therein did not honour his commitment in paying the said sum of Rs.90,000/- whereupon he filed execution petition for executing the said decree but the execution petition was not at all entertained. Being aggrieved by that C.R.P.No,3096 of 2007 was filed before this Court and this Court vide order dated 14.02.2008 ordered thus:2. The plaintiff has filed the suit for recovery of Rs.1,40,000/- from the defendant. On 7.7.2006 there was an endorsement made by the party in the plaint to the effect that the matter has been settled between the parties and the suit is withdrawn on the basis of the compromise entered into between the parties and the plaintiff, on the basis of the compromise entered into, restricted his claim to Rs.90,000/- instead of the suit claim of Rs.1,40,000/-. The decree in O.S.No,5548 of 2006 reads as follows:"The suit having been reported as settled out of Court, this Court doth order and decree as follows:-"1. that the suit be and the same is hereby dismissed as settled out of court. 2. that the sum of Rs.5,250.50 (Rupees five thousand two hundred and fifty and paise fifty only) being the one half of the court fee paid on the plaint be refunded to the plaintiff application subject to the deductions as provided under Section 78 of the Tamil Nadu Court Fees and Suits Valuation Act XIV of 1955".So from the above said decree it is clear that the suit was dismissed and that there was no decree passed for Rs.90,000/- in favour of the plaintiff on the basis of the compromise. Since there is no decree for Rs.90,000/- in favour of the plaintiff in O.S.No,5548 of 2006, the plaintiff cannot execute any decree in O.s.No,5548 of 2006. Under such circumstances, there cannot be a direction to the Executing Court to number E.P.Sr.No,39875 of 2007 in O.S.No,5548 of 2006. If the defendant has not paid Rs.90,000/- as per the terms of compromise entered into between the parties on 7.7.2006, the remedy open to the plaintiff is to take appropriate action before the appropriate forum.

(3.) WHEREAS the learned counsel appearing for the respondent/ plaintiff would develop his argument to the effect that the plaintiff was lulled into the belief that the defendant would pay the sum out of Court, when the previous suit was pending and based on that alone, the said judgment was invited. As such, the subsequent suit is maintainable. 6. This is virtually a singularly singular case, wherein certain peculiar facts are involved. But as correctly pointed out by the learned counsel for the revision petitioner, it is for the lower Court to consider the same after hearing both the sides and that too, after entertaining evidence, in this regard.7. Hence, I am of the considered opinion that at this stage, in this case, this Court cannot simply interfere and hold in one way or the other and if done it will prejudice the right of either of the parties and a bare perusal of the order of the lower Court would reveal that the lower Court, in fact, wanted to entertain the evidence and thereafter come to a conclusion objectively.8. In such a case, I could see no reason to direct the lower Court to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure in limini.9. With the above observation, this civil revision petition is disposed of. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.