IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 5459 of 2009(O) ------------------------- CMA.95/2008 of DISTRICT COURT, KOTTAYAM OS.738/2004 of MUNSIFF COURT, KOTTAYAM (IA 851/08 & IA 852/08) .................... PETITIONER(S): --------------- P.V KRISNAN KUTTY, S/O. KUTTIYAMMA, PADINJAREPARAMBIL HOUSE, MARIYAPPALLY KARA, NATTAKOM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SMT.A.SREEKALA RESPONDENT(S): --------------- BHAVANIKUTTYAMMA, SREENILAYAM HOUSE, IRANJAL, MUTTAMBALAM.P.O, KOTTAYAM DISTRICT. ADV. SRI.B.KRISHNA MANI FOR R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 5459/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN OS NO.738/2004 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, KOTTAYAM. EXT.P2: COPY OF IA NO.851/2008 DATED 14.3.2008 FILED IN OS NO.738/2004 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, KOTTAYAM. EXT.P3: COPY OF IA NO.852/2008 DATED 14.3.2008 FILED IN OS NO.738/2004 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, KOTTAYAM. EXT.P4: COPY OF THE ORDER DISMISSING IA NO.852/2008. EXT.P5: COPY OF THE ORDER DISMISSING IA NO.851/2008 EXT.P6: COPY OF THE CMA NO.95/2008 ON THE FILE OF THE DISTRICT COURT, KOTTAYAM. EXT.P7: COPY OF THE OBJECTION FILED IN CMA NO.95/2008 ON THE FILE OF THE DISTRICT COURT, KOTTAYAM. EXT.P8: COPY OF THE JUDGMENT IN CMA NO.95/2008 ON THE FILE OF THE DISTRICT COURT, KOTTAYAM. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.5459 of 2009 --------------------------------------------- Dated this the 20th day of March, 2009 JUDGMENT The defendant in O.S.No.738 of 2004 on the file of the court of the Munsiff of Kottayam is the Writ Petitioner. He challenges the order passed by the trial court dismissing his application under Order IX Rule 13 of the Code of Civil Procedure and the judgment of the appellate court in C.M.A.No.95 of 2008. The ex-parte decree was passed on 31.3.2006. The petitioner applied for setting aside the ex-parte decree. The trial court dismissed that application. On appeal, the appellate court confirmed the order of the trial court. At the time when the Writ Petition came up for admission, delivery of the property was sought to be stayed. An interim order was passed on 18.2.2009 which reads as follows: “After having heard the learned counsel for the petitioner, I do not think that this is a case where the Writ Petition can be entertained on the merits. The learned counsel for the petitioner, however, submitted that if the decree is executed and the boundary is fixed as per the terms of the decree, the petitioner would lose a considerable part of his residential building. The case of the plaintiff is that WPC No.5459/2009 2 while she was outside Kerala, the defendant trespassed upon a portion of her property and constructed the house. The learned counsel submitted that the petitioner is keen on settling the matter with the respondent and if in the meanwhile, the portion of the house which may be delivered to the respondent is to be demolished, he would be put to great prejudice. Urgent notice before admission to the respondent by speed post returnable in ten days. There will be no stay of delivery. However, the respondent shall not demolish the portion of the building in the property which she may take delivery of.” 2. The respondent appeared. After several rounds of talks, the parties have settled the matter. The compromise petition is signed by the parties and their counsel. The compromise is accepted. 3. As per the decree, the plaintiff's title and possession over the plaint A schedule property was declared. The boundary of the plaint A schedule property is fixed as stated in the decree. The portion having an extent of 28.5 sq.mtrs. in the A schedule property was permitted to be recovered from the possession of the defendant. The defendant was restrained by a permanent prohibitory injunction from committing any acts of waste in the plaint A schedule property. Now, as per the terms of the compromise, the parties have agreed to execute an exchange WPC No.5459/2009 3 deed by which the portion of property sought to be recovered as per the decree shall be retained by the Writ Petitioner/defendant and another similar extent from another portion of the plaint B schedule property shall be assigned in favour of the plaintiff. The various terms and conditions of the compromise are also stated in the compromise petition. The compromise petition is to be worked out by appointing a Commissioner. It is submitted by both parties that accepting the terms of compromise, the same can be treated as a compromise decree. Accordingly, the compromise shall be treated as a compromise decree. The original compromise petition shall be forwarded by the Registry to the executing court after retaining a photo copy in the file. The executing court shall pass appropriate orders in terms of the compromise. The Writ Petition is disposed of as above. K.T.SANKARAN, JUDGE csl