IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 RFA.No. 389 of 2008() ------------------------------- OS.43/2004 of SUB COURT,ATTINGAL .................... APPELLANT (S): PLAINTIFF ---------------------------------------- BABU, S/O.SUKUMARAN, KOLLOR, CHARUVILA PUTHEN VEEDU EDAIKODE VILLAGE, REP. BY NEXT FRIEND AND GUARDIAN P.SUKUMARAN, KOLLOR, CHARUVILA PUTHEN VEEDU EDAIKKODE VILLAGE BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. KRISHNAMMA, AGED 50, D/O.GOMATHI, THOPPIL VEEDU, KADAKKAVOOR DESOM CHIRAYINKEEZH VILLAGE 2. MANJU, AGED 32, D/O.KRISHNAMMA, OF DO.DO. 3. REETH @ SHINI, AGED 28, D/O.SUBHASHCHANDRAN 4. SINDHU, AGED 27 YEARS D/O.KRISHNAMMA OF DO.DO. 5. SECRETARY, CHIRAYINKEEZHU SERVICE CO.OP.BANK, CHIRAYINKEEZHU. R1 TO R4 BY ADVS.SRI.RIJI RAJENDRAN R5 BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ IA No.4504/10 & RFA No.389 of 2008 ------------------------------------------------------------------------ Dated 8th December 2010 Judgment Bhavadasan, J. This appeal arises from OS No.43/04 before the Sub Court, Attingal. The suit was one for declaration and consequential benefits. It was dismissed by the court below. 2. An appeal was filed by the plaintiff through his next friend and guardian as the plaintiff was unable to manage his affairs due to mental illness. During the pendency of the appeal, the next friend expired and an application was filed as IA No.2985/10 in the appeal seeking to have the brother of the appellant appointed as the next friend. Since this court found that the next friend was appointed during the trial stage, without conducting proper enquiry, this court directed the trial court to determine the mental status of the appellant herein. The trial court, after conducting an enquiry, entered a finding that the appellant is normal and is capable of managing his affairs. 3. The appellant has filed IA No.4502/10 to have the 5th respondent deleted from the party array. That application is allowed at the risk of the appellant. RFA 389/08 2 4. It appears that the parties have compromised the dispute between then and have settled the issues that arose between them. A compromise petition has been filed as IA No.4504/10 and it is prayed that a decree may be passed in terms of the compromise. After having gone through the compromise, it is felt that it can be accepted. In the result, this appeal is allowed. The judgment and decree of the court below are set aside and a decree is passed on the following terms. 1) The respondent Nos.1 to 4 shall execute sale deed in respect of the plaint schedule property in favour of the appellant, subject to the liability with Chirayinkeezhu Service Co-operative Bank, Chirayinkeezhu, in favour of which mortgage has been created in respect of plaint schedule property within a period of one month form today. 2. The liability to discharge the dues with M/s.Chirayinkeezhu Service Co-operative Bank, Chirayinkeezhu, in respect of which mortgage has been created in respect of plaint schedule property, shall be on the appellant. 3. The expense for the stamp duty and registration of the sale deed shall be borne by the appellant. 4. On failure of respondent nos.1 to 4 to execute sale deed as mentioned above in respect of plaint schedule property, the appellant shall be at liberty to get the sale RFA 389/08 3 deed executed through court. 5. The parties agree that the half of the court fees paid in the above RFA can be refunded to the appellant. It is ordered that the compromise petition and the terms of compromise shall form part of the decree. The injunction order granted by this court stands vacated and the office will communicate the same to the S.R.O., Attingal. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta RFA 389/08 4