TaxTMI 
TaxTMI 
2009 (4) TMI 1073
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.... proceedings even though the suit was dismissed as withdrawn at the specific request of the parties. 4. The appellant in the year 1989 filed a suit for permanent injunction against the respondent to restrain him from interfering in any manner with the appellant's right of peaceful enjoyment and possession or encroaching or entering upon or carrying out any construction activity on the property bearing Municipal No. 268, Jamia Nagar, Okhla, New Delhi. The parties thereafter entered into an Agreement on 25.02.1991. The said Agreement is based on factual matrix stating that the appellant is the exclusive owner and in possession of the land comprising of 8430 sq. mtrs. including residence, servant quarters and out-house constructed on t....
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....o withdraw the aforesaid suit No. 331 of 1989 titled as Mohd. Amin Vs. Mohd. Iqbal pending in the court of Delhi, New Delhi simultaneously with the signing of this Agreement. ... ... ... ... ... ... ... ... 19. That all disputes, differences relating to the technical aspects and arising out of and in connection with this Agreement or interpretation of the provisions of the Agreement, shall be referred to the Project Architect, as Sole Arbitrator, whose decision shall be final and binding on the parties hereto. The provisions of Indian Arbitration Act, 1940 or any statutory modification thereto shall be applicable to such arbitration. The venue shall be at Delhi." 6. The parties having entered into the aforesaid set....
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....eek his other remedies on the basis of clause 10 of the Agreement in accordance with law. The respondent aggrieved by the said Order preferred an appeal, i.e., EFA (OS) No. 13/2004, which was disposed of in terms of an Order dated 18.11.2005 of the Division Bench. The Division Bench took note of the fact that while permitting withdrawal of the suit, it was directed that the parties would be bound by the terms of the compromise and, thus, the observations of the Executing Court that clause 10 of the Agreement was a new Agreement between the parties does not appear to be correct. The Order dated 12.03.2004 was set aside and the matter remanded back to the Executing Court to decide afresh in the light of the observations made in the appea....
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....l for the appellant is that in view of the suit having been dismissed as withdrawn there was no decree passed which was capable of execution and the remedy of the respondent, if any, lay elsewhere. On the other hand, learned counsel for the respondent submits that part of the Order, which records the factum of the compromise, is executable. 13. Learned counsel for the respondent has relied upon a judgment of the Division Bench of this Court in Hardit Singh Obra v. Daljit Singh, ILR (1974) II Delhi 571. In the facts of the said case, an application under Order XXIII Rule 3 of the CPC was filed. It was observed that if the compromise is legal, there is no discretion in the Court to add or vary the terms and the Court must pass a decree in ....
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....as the suit itself was dismissed as withdrawn. This was not a mistake as in the case of Hardit Singh Obra's case (supra). The Order was consciously passed on the basis of the understanding between the parties as contained in the Agreement dated 25.02.1991 that the suit should be dismissed as withdrawn. We may also notice that the Division Bench while passing the earlier Order dated 18.11.2005 had only remanded the matter to be reexamined by the Executing Court in view of the observations that clause 10 of the Agreement was not a new Agreement between the parties. There was no final finding in respect of the various controversies raised in the appeal. An order for a decree or order to be executable must contain finality as to the nature of d....