JAYANT NATH, J. - (1.) Allowed subject to all just exceptions. CM(M) 259/2017 and CM No. 8602/2017(stay) CM No. 8603/2017 By the present petition under Article 227 of the Constitution of India the petitioner seeks to impugn the order dated 27.02.2017 by which the Executing Court only issued notice to the respondent but did accept the ex parte prayer as made in the application filed by the petitioner to appoint a Local Commissioner to make an inventory of the offending goods. The petitioner had filed a suit seeking injunction against infringement of copyright, passing off, damages, delivery and rendition of accounts against the respondent. The petitioner is engaged in the production of Pop Corn with an alleged unique and highly distinctive packaging. It was stated that the respondents are using a packaging with a layout and trade dress identical to that of the petitioner.
(2.) When the suit was filed, the trial court had on 26.12.2016 apart from passing an ex parte injunction had also appointed a Local Commissioner to make an inventory of the goods in question.
(3.) Subsequently, parties settled their disputes and application under Order 23 Rule 3 CPC was filed. As per the application in para 3 it was agreed as follows:- "iii That the plaintiff has no objection if the finished goods/products seized by the Local Commissioner on 27.12.2016 be released to the defendants for commercial sale through their super stockiest/distributors. The Defendants undertake and state that the goods so released shall be disposed off on or before 26th January 2017. The Defendants further undertake to this Court that if any of the released products are lying unsold after 26th January 2017, the same shall be handed over to the plaintiff.";