IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 FAO.No. 324 of 2009 ----------------------- AGAINST THE ORDER DATED 26/03/2009 IN IA 347/09 IN OS.93/2009 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/RESPONDENT/DEFENDANT: -------------------------------------------- JOSEPH JOSEPH, AGED 57 YEARS, S/O.JOSEPH, IYYALIL HOUSE, KODANCHERI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT(S): PETITIONER/PLAINTIFF: ----------------------------------------------- ROYI MATHEW, AGED 43 YEARS, S/O.MATHEW, THOZHALAYIL HOUSE, KODANCHERI AMSOM DESOM, KOZHIKODE TALUK. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 18/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ F. A. O. No.324 of 2009 ------------------------------------------------ Dated this the 18th day of February, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this appeal is an order passed by the Subordinate Judge's Court, Kozhikode granting injunction against the appellant who was the defendant in a suit for specific performance of contract for sale from alienating the plaint schedule property and also from committing acts of waste on the plaint schedule property. The suit is admittedly for specific performance of a contract for sale of immovable properties with an alternative prayer that the advance amount paid be returned with F. A. O. No.324 of 2009 -2- interest. 2. Sri.R.Sudhish, the learned counsel for the appellant would submit that the order of injunction presently issued is absolutely unwarranted. According to him, the respondent/ plaintiff had earlier filed a suit for injunction and withdrew from that suit and thereafter, only the present suit is filed. He submitted that the appellant has no intention whatsoever to alienate the plaint schedule property or to commit any acts of waste on the plaint schedule property. 3. Even though Sri.Sudhish was very persuasive in his submissions, we are of the view that the appellant cannot have any legitimate grievance regarding the impugned order. The suit was for specific performance and hence, the F. A. O. No.324 of 2009 -3- property in question was the subject matter of the suit. That being so, any alienation will be hit by rule of lis pendens as enshrined in section 52 of the Transfer of Property Act. Therefore, the order restraining alienation will not cause any legal prejudice to the appellant. 4. As for commission of waste, it was submitted by Sri.Sudhish himself before us that the appellant has no intention to commit any acts of waste. That being so, we are of the view that the appellant cannot have any grievance about the impugned order. We dismiss the appeal in limine. However, since we are informed that the respondent is defaulter and in view of his default, the appellant has already entered into an agreement with the third party for purchasing F. A. O. No.324 of 2009 -4- another property and that a counter claim has been lodged by the appellant in the suit, we direct the First Additional Sub Court, Kozhikode to give priority to the suit O.S.93/09, include the same in the special list once it becomes ripe and dispose of the same, at the earliest, and at any rate, within three months of receiving a copy of this judgment. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-