IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 CRP.No. 305 of 2009() ------------------------------- AGAINST THE ORDER DATED 12/03/2009 IN EP.32/2008 IN OS.88/1999 of MUNSIFF COURT, PUNALUR .................... REVN. PETITIONER/ DECREE HOLDER-PAINTIFF --------------------------------------------------------------------- MATHAIKUTTY, AGED 74, S/O.LUKOSE, LILLY SADANAM, AYILARA KARA, EROOR VILLAGE, PATHANAPURAM TALUK, FROM THOLAR KIZHAKKE VEEDU, DO. DO. BY ADV. MR.S.V.PREMAKUMARAN NAIR MR.R.T.PRADEEP MR.V.VIJULAL RESPONDENTS/JUDGMENT DEBTORS/DEFENDANTS -------------------------------------------------------------------------- 1. RAJAN VARGHESE, S/O.VARGHESE, THOLOOR KIZHAKKE VEEDU, AYILARAKKARA, EROOR VILLAGE, PATHANAPURAM TALUK. 2. PONNACHAN VARGHESE, S/O.VARGHESE, OF DO. DO. 3. MARIAMMA @ KUTTY AMMA, W/O.VARGHESE OF DO. DO. R1 TO R3 BY ADV. MR.S.SREEKUMAR. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.305 OF 2009 (B) ----------------------------------- Dated this the 28th day of July, 2009 O R D E R The revision is directed against the order dated 12.3.2009 in E.P.No.32/2008 in O.S.No.88/1999 on the file of the Munsiff Court, Punalur. Two suits were jointly tried namely, O.S.No.88/1999 and O.S.No.105/1999, in which, the present revision petitioner was the plaintiff in O.S.No.88/1999 and the defendant in the other suit. The defendants in O.S.No.88/1999, it is submitted, were the plaintiffs in O.S.No.105/1999. Both parties entered into a compromise and the terms thereof were recorded as part of the decree passed in the suit. The disputes related to the enjoyment of two pathways and under the terms of the compromise which culminated in a compromise decree, the terms for the use and enjoyment for such pathways by the parties were specified. Later on, the decree holders in O.S.No.105/1999 filed an execution petition alleging violation of the terms of the compromise decree by the revision petitioner, the defendant in that suit. After instituting a suit seeking the reliefs of CRP.305/09 2 mandatory and prohibitory injunction in relation to the compromise decree passed earlier and that suit being dismissed directing the plaintiff/the present revision petitioner to approach the civil court, he filed an execution petition for executing the compromise decree. The execution sought for was resisted by the judgment debtors who had earlier preferred another petition for executing the very same decree alleging flouting of the terms of the compromise decree by the revision petitioner. The learned Munsiff, upholding the contentions raised by the judgment debtors dismissed the execution petition moved by the revision petitioner. Hence this revision. 2. I heard the learned counsel for the petitioner. Having regard to the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. A copy of the compromise decree passed in both the suits jointly tried, which are referred to above, has been handed over to me by the learned counsel for the petitioner for perusal. Perusing that compromise decree, I CRP.305/09 3 find the execution court has first to examine whether that decree is executable. I do not want to express any opinion on the terms of the compromise spelt out under the decree. It is for the execution court to examine whether the terms of the agreement as between the parties incorporated in the decree gave rise to a right to sue alone in case of violation of any terms thereunder or it is executable before the court. An earlier execution petition preferred by the judgment debtors nearly four years ago, and a suit filed by the revision petitioner for declaration, were dismissed, which had been taken by the learned Munsiff as among the reasons for treating the compromise decree at his instance unexecutable, which, according to the counsel for the petitioner, was incorrect, are not relevant factors debarring the present revision petitioner from executing the decree if it is otherwise executable. So the first and most crucial question is whether the compromise decree is executable or not. Setting aside the order of the court below, I direct the learned Munsiff to consider that question and proceed with the matter in accordance with the decision in that matter. CRP.305/09 4 Revision is allowed accordingly. S.S.SATHEESACHANDRAN JUDGE prp