IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 FAO. No. 124 of 2009() --------------------- AGAINST THE ORDER DATED 08/04/2009 IN IA. 1445 /2009 IN AS.72/2008 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT/PETITIONER/IST DEFENDANT ------------------------------ LAKSHMY,W/O.VARANATVEETIL MANIYAN, KORATTY DESOM,MURINGOOR THEKKUMMURY VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- NANDAKUMAR,S/O.ALANCHERIVEETTIL SANKARAN NAIR,KORATTY DESOM, MURINGOOR THEKKUMMURY VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. ADV. S.SREEKUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * F.A. O. NO. 124 of 2009 * * * * * * * * * * * * * * * * * * Dated: 17-7-2009 JUDGMENT The first defendant in O.S. No. 6 of 2007 on the file of the Munsiff's Court, Chalakkudy is the appellant in this appeal. The said suit instituted by the respondent herein was one for a perpetual injunction restraining the defendant from constructing a residential building in his property in such a way as to cause obstruction to the plaintiff in using the pathway leading to the plaint schedule property from the east to the west. The suit ended in a decree passed in favour of the plaintiff. Aggrieved by the decree, the defendant filed A.S. No. 72 of 2008 before the Sub Court, Irinjalakkuda. Pending the said appeal the defendant filed I.A. No. 1445 of 2009 for a temporary injunction against the plaintiff. The said application though opposed was partly allowed. It is the said order which is assailed in this appeal filed under Order 43 Rule 1 ( r) C.P.C. Pending this Appeal, the parties have settled the matter and have filed I.A. No. 2395/2009 under Order 23 Rule 3 C.P.C. As per the compromise recorded in the said interlocutory application, the plaintiff has provided a way to the defendant's house on the west along the southern extremity of the plaintiff's property. A plan is also attached to the compromise petition. The parties have prayed for a decree in F.A. O. NO. 124 of 2009 -:2:- terms of the compromise. 2. Since this appeal is only against an interlocutory order passed by the lower appellate court and also since the appeal in which the impugned order was passed is pending before the lower appellate court, I am of the view that the appropriate Court for the parties to seek a decree in terms of the compromise is the lower appellate court. Accordingly, I.A. No. 2395 of 2009 shall be returned to the counsel appearing for the appellant for production before the lower appellate court where the parties can move for the passing of a decree in terms of the compromise entered into between the parties. This appeal is accordingly disposed of. The Registry shall retain a photocopy of I.A. 2395/2009 together with the compromise petitionand plan before returning the same. Dated this the 17 th day of July 2009. Sd/- V. RAMKUMAR, (JUDGE) /true copy/ ani.