Shibu vs Beena
2023 Latest Caselaw 8282 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                     THE HONOURABLE MR. JUSTICE P.SOMARAJAN

            TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945

                                 CRP NO. 28 OF 2023

   AGAINST THE ORDER IN EP 32/2015 OF PRINCIPAL MUNSIFF COURT,NEDUMANGAD

PETITIONER/DECREE HOLDER/PLAINTIFF:

             SHIBU
             AGED 45 YEARS
             S/O ABOOBEKKAR, , KANNATHUMANZIL, ETTIRUTHI MURI, KULATHUMMAL
             VILLAGE,NEYYATTINKARATALUK, THIRUVANANTHAPURAM, PIN - 695572

              BY ADV T.V.JAYAKUMAR NAMBOODIRI



RESPONDENT/JUDGMENT DEBTOR:

              BEENA
              D/O SAHARABAN BEEVI, THAZHAVILA VEEDU, KILLI, KOLLODU,
              KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695572

              BY ADVS.
              G.P.SHINOD
              GOVIND PADMANAABHAN(K/925/2010)
              AJIT G ANJARLEKAR(K/000083/2014)
              ATUL MATHEWS(K/1675/2018)
              GAYATHRI S.B.(K/2005/2020)




     THIS    CIVIL    REVISION   PETITION   HAVING    COME   UP   FOR   ADMISSION   ON

01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRP NO. 28 OF 2023
                                       2




                                   ORDER

It is a case where execution proceedings were initiated based on

a compromise arrived at by the parties at the First Appellate Court

in C.M.A. The First Appellate Court in C.M.A recorded the

compromise and consequently, it was dismissed. But, thereafter, the

compromise was not acted upon or accepted by the trial court and no

decree was passed. The order passed in C.M.A cannot be substituted

in the place of a decree that can be drawn by the trial court. The

earlier ex-parte decree passed by the trial Court will stand merged in

the compromise entered into by the parties at the First Appellate

Court in C.M.A. Necessarily, the proper remedy of the plaintiff is to

get a decree passed based on the compromise arrived at by the

parties, for which, they are at liberty to approach the trial court.

2. The suit can be restored to file for the purpose of

accepting the compromise and to pass a decree in terms of the

compromise. It is made clear that, without a decree, no execution

proceedings can be initiated under Order XXI of Code of Civil

Procedure (CPC). The only exemption is drawn under Section 36 of

the CPC, by which every method available under Order XXI of the

CPC can be availed of in the matter of enforcement of interim order

passed by the competent Court.

CRP NO. 28 OF 2023

3. Necessarily, unless there is a decree passed by the

competent Court, no execution proceedings can be initiated. With the

above said direction to the trial Court, the present civil revision

petition is hereby disposed of without altering the earlier order

passed in the two execution proceedings already initiated.

It is made clear that the party would stand bound by the

compromise and it can be made as part of the decree that may be

passed by the trial Court. Thereafter, the parties will be at liberty to

go for execution if it was not obeyed by the opposite party. Without

prejudice to the said right, the present civil revision petition will

stand disposed of with the above said direction.

Sd/-

P.SOMARAJAN JUDGE rp