1. W.P.(C).No.836/2010

The petitioners are the defendants in O.S.No.39 of 2008 on the file of the Sub Court, Thalassery. They are also the respondents in I.A.Nos.2467 & 2468 of 2009. The writ petition is filed seeking to set aside Ext.P4 common order dated 5.12.2009 in the above said I.As and to pass an order dismissing the said I.As as illegal and arbitrary.

2. I.A.No.2467/2009 is an application filed under Section 28(3)(a) of the Specific Relief Act to direct the defendants in the suit (petitioners herein) to execute the sale deed in respect of plaint A, B and C schedule properties. I.A.No.2468/2009 is filed under Section 151 of the Code of Civil Procedure to permit the plaintiff to deposit the balance sale consideration before the court.

3. The short facts leading to the filing of the aforesaid two writ petitions are as follows:

Suit was filed for specific performance of the agreement dated 2.4.2007 directing the defendants to execute sale deeds in respect of plaint A, B and C schedule property. During trial, the mater was settled between the parties. They filed a compromise petition on 11.11.2008 praying to pass a decree in terms of the compromise. The court decreed the suit as per the terms of compromise.

4. Copy of the compromise petition filed by the parties under Order XXIII Rule 3 is marked as Ext.P3. As per the terms of the compromise petition the petitioner in the I.A (plaintiff) agreed to purchase the plaint schedule properties for a different centage value than what is mentioned in the sale agreements. As per the sale agreement dated 2.4.2007 the defendants agreed to sell plaint schedule properties to the plaintiff at the rate of Rs.16,000/- per cent. As per the terms of the compromise the centage value is fixed separately for plaint A, B and C schedule properties. Parties agreed the value of plaint A schedule property at Rs.21,000/- per cent, plaint B schedule property at Rs.20,000/- per cent and Rs.21,000/- per cent for plaint C schedule property. Clause 2, 3 & 4 in Ext.P3 deals with the value of the property. Clause (5) deals with the period within which the balance consideration shall be paid and the execution of the sale deeds. The period agreed was on or before 3= months. In clause (6) parties further agreed that if the plaintiff is unable to get the sale deeds executed within 3= months, the plaintiff shall have the right to receive back the advance amount paid without interest. In clause ((7) the parties further stipulate that if the defendants commit breach in executing the sale deeds within the agreed dates, the plaintiff has got every right to get the execution of the sale deed in his favour by payment of the consideration originally agreed in the sale agreements (Rs.16,0000/- per cent) and that the defendants are bound to execute the sale deeds at the same rate. The court passed a decree in terms of the compromise. Thus all the terms agreed between the parties which are recited in Ext.P3 form part of the decree.

5. As I said earlier, clause (5) in Ext.P3 compromise petition fixed 3= months for execution of the sale deeds in favour of the plaintiff. The said 3= months period expired on 26.2.2009. Plaintiff had not chosen to pay the agreed sale consideration on before 26.2.2009. The sale consideration payable less advance amount is rupees 13 and odd lakhs.

6. After the expiry of the date, i.e., on 27.2.2009, the plaintiff paid Rs.2,45,000/- to the third respondent in the I.A. The petitioner has also purchased stamp paper worth Rs.34,300/- for the purpose of registration. The petitioner filed the above said I.As for the reliefs I have mentioned in the preceding paragraphs.

7. In the counter affidavit filed by the petitioners who are the respondents in the I.As, it is inter alia contended that the time fixed for execution of the sale deed as per the terms of compromise has expired, that they are not liable to execute the sale deed in favour of the petitioner, that they have entered into an ag