Shri Soham Brahm Nath v. Shri Krishan Kumar Nath

1. The appellant is aggrieved by an order dated 26.04.2013 made in Execution Petition 303/2010. The proceedings arose out of a compromise decree recorded by the Court on 28.05.2009 in terms of an agreement of the parties by which the appellant, brother of the respondent (in the present case) agreed that his (plaintiffs) shares would be sold for the sum of ?22,50,000/- and that the portion of the premises under his occupation would be surrendered to the present respondent. By clause (iv), it was stated that the appellant sought 3 months and fifteen days' time to vacate the premises and upon handing-over of the vacant physical possession of his portion of the premises, the sum of ^'22,50,000/- would be paid to him simultaneously.

2. The appellant sought unsuccessllilly for the recall of the order recording compromise. His appeal to the Division Bench too was 2013:DHC:7980-DB dismissed. In these circumstances, when the plaintiff in the suit sought for execution of the decree and the grant of vacant physical possession of the appellant's portion of the premises, the latter resisted. By the impugned order, the learned Single Judge allowed the execution proceeding and directed the execution of Sale Deed to the extent it related to title to 1/3"* of the appellant's share in the premises, by appointment of Court Commissioner and further held that vacant physical, possession had to be handed over to the respondent in the present case. Learned Single Judge, in addition thereto, given the overall conspectus of facts, issued notice to the appellant under section 74 CPC, to show cause why he should not be detained in Civil prison. During the pendency of the present appeal, it has transpired that the appellant has in fact handed over the premises to the present respondent, a fact confirmed by the learned counsel for the latter. The respondent in the present matter has deposited the sum of ^22,50,000/- in court on 24.05.2013. In these circumstances, the appellant's counsel, upon instructions, states that the present appeal would not be pursued but at the same time requests that notice under Section 74 may be discharged.

3. The appellant is present in Court and confirms to the statement made by the counsel. In view of the above developments, the appellant is at liberty to withdraw the sum of ^22,50,000/- from the court. It is hereby directed that the notice issued under Section 74 to the appellant shall stand discharged. The appellant is also free to collect his belongings which are lying in the premises that have been handed over to the respondent. It is subject to the fulfilment of the decrctal condition with regard to payment of his liabiUty. It is stated that an amount of ^36,000/- is payable to the plaintiff towards electricity and other dues, the details of which are mentioned in an affidavit filed in the present proceedings. Having regard to these circumstances, the appellant is at liberty to withdraw the sum of ^22,50,000/-. It is open to the appellant to contest the extent of liability, if so advised, before learned Single Judge in Exec. Pet. 303/2010. The appeal and pending application are allowed in the above terms.

S. RAVINDRA BHAT, J

V lVATMTWA7m NAJMI WAZIRI, J SEPTEMBER 05, 2013 'ajk'