IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 FAO.No. 42 of 2005() -------------------- AS.140/2002 of PRINCIPAL SUB COURT,KOCHI OS.338/2001 of PRL.M.C., KOCHI .................... APPELLANT/RESPONDENT/DEFENDANT: --------------------------------------------------- BALAN, S/O. SANDALAN, AGED 58, OOZHIPARAMBIL HOUSE, PUTHUVYPE VILLAGE, KOCHI TALUK. BY ADV. SRI.S.B.PREMACHANDRA PRABHU RESPONDENTS: APPELLANTS/PLAINTIFFS: ------------------------------------- 1. KANAKA, D/O. KALI, HOUSE WIFE, KOLATHU HOUSE, MURUKUMPADAM, PUTHUVYPE VILLAGE, KOCHI TALUK. 2. NARAYANAN, S/O. KALI, KOLATHU HOUSE, PUTHUVYPE VILLAGE, KOCHI. 3. THANKAMMA, D/O. KALI, KOLATHU HOUSE, PUTHUVYPE VILLAGE, KOCHI. ADV. SRI.ASOK M.CHERIAN FOR RESPONDENTS SRI.K.R.VINOD FOR RESPONDENTS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/12/2009, ALONG WITH CRP NO. 128 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ----------------------------- F.A.O No.42/2005 & C.R.P.No.128/2005 ------------------------------ Dated this the 23rd day of December, 2009. J U D G M E N T F.A.O No. 42 of 2005 is filed against the order of remand passed by the Principal Subordinate Judge, Kochi in A.S.No.140 of 2002. In turn this is an appeal preferred against the judgment in O.S.No.338 of 2001. C.R.P No.128 of 2005 is preferred against the order in I.A.No.628 of 2004 in A.S.No.69 of 2004. It was an application filed to condone the delay in filing the appeal which was allowed by the Court and that is the subject matter of the revision. Now one need not go into the merit of the case for the reason that the parties had amicably settled the matter. But it is necessary to have an idea about the litigation so as to appreciate the terms of the compromise. O.S.No.338 of 2001 filed for specific performance of the contract and also for an injunction to restrain the defendant from interfering with the peaceful possession of the plaintiff over the property. The trial court granted a decree for injunction but refused the prayer for specific performance. It is challenging the same A.S.No.140 of 2002 had been filed. Meanwhile, the defendant F.A.O No.42/2005 & C.R.P.No.128/2005 2 in O.S.No.338 of 2001 had filed a suit O.S.No.588 of 1998 for receipt of the balance consideration due under the terms of the agreement. It was decreed as ex-parte. An appeal was preferred as A.S.No.69 of 2004. It was by a common judgment A.S.No.140 of 2002 and A.S.No.69 of 2004 had been disposed of by an order of remand. When the delay condone application was allowed, dissatisfied with the same a civil revision petition is filed as C.R.P.No.128 of 2005. Now the parties have settled the matter by virtue of a compromise. Though the language of the High Court is English I find that the compromise petition in Malayalam and the learned counsel appearing for the appellants submitted before me that the parties were very particular that compromise should be in Malayalam in order to understand the terms and conditions of the compromise. So I entertain this compromise petition but as a matter of routine, I had requested the learned counsel appearing for the parties to put the English translation of the compromise petition as well for the purpose of completing the records. Therefore in the light of the compromise, both the suits are disposed as follows: 1. The defendant in the suit O.S.No.338/2001 had agreed to assign the property described in the plaint schedule on F.A.O No.42/2005 & C.R.P.No.128/2005 3 receipt of the balance consideration of Rs.6,000/- from the plaintiff in O.S.No.338 of 2001. 2. The balance consideration of Rs.6,000/- mentioned above shall be given to the defendant on or before 31.1.2010 and on receipt of the same the suit O.S.No.588 of 1998 shall be deemed to be dismissed. 3. On receipt of Rs.6,000/- as balance consideration, the defendant in suit O.S.No.338/2001 is bound to measure the property at the expense of the plaintiff and thereafter execute an assignment deed on or before 31.1.2010. In case the balance consideration of Rs.6,000/- is not paid on or before 31.1.2010, the plaintiff in O.S.No.588 of 1998 is granted a decree for the said amount with interest at the rate of 12% per annum and the property shall be a charge. 4. When the balance consideration of Rs.6,000/- is paid, the defendant in O.S.No.338 of 2001 is directed to execute the document in favour of the plaintiff in that suit and in the absence of the same the plaintiff in the suit is entitled to deposit that amount before the Court and the trial Court is F.A.O No.42/2005 & C.R.P.No.128/2005 4 directed to execute the document in favour of the plaintiff therein. 5. The parties are bound to follow the terms and conditions of the compromise and they had agreed for disposal of both suits on the basis of the terms of the compromise. 6. The above said conditions are accepted and made enforceable as prayed for and a decree is passed as per the terms of the compromise. The parties are directed to bear their respective costs. 7. The learned counsel for the plaintiff in O.S.No.338 of 2001 had made a request that in pursuance of the order of the Court an amount of Rs.6,000/- is deposited by him in the trial court and that she may be permitted to withdraw the same for the purpose of making the balance payment and that is also allowed. 8. The presence of the plaintiff and defendant in O.S.No.338 of 2001 before this Court is also recorded. Disposed of accordingly. Sd/- M.N.KRISHNAN, JUDGE //True Copy//