EFA(OS) No.38/2009 Page 1 of 27

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment Reserved on: July 18, 2012

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EFA(OS) No.38/2009

SHRI M.R. MALHOTRA (SINCE DECEASED) THR. LRS. &

ORS

..... Appellants

Represented by: Mr.Sanjay Poddar, Sr.Advocate

instructed by Mr.Mohinder

Madan & Mr.Shyam Dev,

Advocates

Mr.S.S.Handa, Advocate for

Appellants-LR1(b)(i) to (iv).

Versus

COMPETENT BUILDERS PVT LTD ..... Respondent

Represented by: Mr.Anil Sapra, Sr.Advocate

instructed by Ms.Sapna Sinha &

Ms.Payal Juneja, Advocates

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1.

The present execution first appeal assails the order

dated 28^th July, 2009 passed in Execution Petition No.95/2003

whereby the learned Single Judge dismissed the execution

petition.

2.

The facts of the case leading to filing of the present

appeal in execution petition are that the appellants filed the suit

bearing CS(OS) No.938/1990 before this Court, praying for

permanent and mandatory injunction against the respondent

and seeking to recover the possession of the land on the basis of

an agreement to sell dated 25^th November, 1980 which had

2012:DHC:4545-DB

EFA(OS) No.38/2009 Page 2 of 27

been executed by the appellants with the respondent and a sum

of `11 lac had been received from the respondent towards part

consideration of the said agreement. The total consideration

had been agreed at `34.50 lac. The balance amount of the

agreed sale consideration was required to be paid by the

respondent to the appellants at the time of execution of the sale

deed, i.e. appellants were seeking avoidance of the agreement.

3.

On 8^th March, 1991 a compromise arrived at between

the parties in the said suit, in the form of application under

Order XXIII, Rule 3 of the Code of Civil Procedure, 1908 which

had been signed by both the parties and their respective

counsel. The said application came up before the Court on 21^st

March, 1991. The learned Single Judge after recording the

statements of the parties had decreed the suit in terms of the

compromise and by allowing the said application.

4.

It is necessary for us to refer the terms and

conditions mentioned in the compromise application which read

as under:-

“2.

That the parties have agreed to settle the

present dispute. The plaintiff shall return the sum of

`11,00,000/- to the defendant and simultaneously the

defendant shall deliver back possession of 6,525 sq.

yds. of land to the plaintiffs. The defendant shall also

not have any interest in the remaining 2,175 sq. yds.

of land which is with the tenant as aforesaid running

CHANDRALOK cinema.

3. That the parties have agreed that the aforesaid

transaction shall be completed within one week from

today. None of the parties shall thereupon have claim

against each other in regard to the aforesaid

agreement

to

sell

dated

25-11-1980

and

the

agreement shall be treated as a DEAD LETTER.”

5.

In view of the above said terms mentioned in the

application, the suit of the appellants was disposed of vide order

2012:DHC:4545-DB

EFA(OS) No.38/2009 Page 3 of 27

dated 21^st March, 1991. The application was exhibited as Ex.C1

and it was specifically recorded that the parties would be bound

by the terms of the agreement and Ex.C1 would form part of the

decree.

6.

The respondent wrote a registered letter dated 30^th

October, 2001 to one of the appellants in reply to letter dated

15^th

October,

2001, namely,

Sh.Suresh

Kumar

Malhotra

informing him