IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 FAO.No. 266 of 2009 --------------------------------------- AGAINST THE ORDER DATED 15.9.09 IN IA 5809/09 IN I.A.NO.3356/07 IN OS.449/2007 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF: --------------------------------- P.S.BABURAM, S/O.MR.SAHADEVAN, AGED 35 YEARS, BABU BHAVAN, ERUVA KIZHAKKUMMURI, PALIPRAH, PATHIYOOR VILLAGE, KARTHIKAPPILLY TALUK, AND NOW RESIDING AT MADUVAN, FR.GEORGE VAKAYIL ROAD, MARADU P.O., ERNAKULAM. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. MR.SREENIVASAN EMBRANDIRI, AGED ABOUT 73, S/O.MR.GOPALAKRISHNAN EMBRANDIRI, DURGALAYAM, KALARIKKAL MADOM, KUMBALAM, ERNAKULAM-682 506. 2. M.K.LAXMIKUTTY AMMA, W/O. BALAKRISHNAN NAIR, AGED ABOUT 60, KALAPURACKAL HOUSE, KUNDANNOOR, MARADU VILLAGE, (DELETED). ADV. SRI.T.N.HAREENDRAN FOR R1 SRI.S.SREEKUMAR FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- F.A.O.NO. 266 OF 2009 --------------------------------------------------- Dated this the 16th December, 2009 JUDGMENT K.M. Joseph, J. Appellant is the plaintiff in a Suit for specific performance. Plaintiff filed I.A. No.5809/09 which has been rejected. Hence this Appeal. 2. Plaintiff had originally filed I.A. No.3356/07 and obtained an order of injunction against the first defendant from alienating the plaint schedule property. The property was transferred to the second respondent. The present I.A. is filed to vacate the very same order of injunction. According to the appellant, the appellant had entered into a compromise with the second respondent who has also been impleaded in the Suit as the second defendant. This is on the basis of the alleged compromise arrived at between them. The court below passed the following order: FAO.NO.266/09 2 “Heard. Injunction granted against the seller of the property in the agreement for sale prior to the impleadment of 2nd defendant. Second defendant is only the subsequent assignee of the property. Compromise between second defendant and plaintiff, pursuing the cause of action against original defendant. Therefore, this compromise of the matter in the absence of first defendant and that too without adjudicating the right and liabilities of plaintiff and original seller under the agreement is not allowable. Hence, the compromise is deferred for consideration after the adjudication of suit. The present I.A. cannot be allowable as it may defeat the right of first defendant.” 3. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the second respondent. Learned counsel for the appellant would submit that the reasoning of the court below is wrong. Learned counsel for the second respondent also supports the appellant. FAO.NO.266/09 3 4. The appellant is the master of the Suit. Appellant obtained an order of injunction and on the basis of the alleged compromise he has entered into with the second respondent, he does not want the injunction order to continue. In such circumstances, we would think that the court below should have allowed the application to vacate the order of injunction obtained at the instance of the appellant/plaintiff. Learned counsel also takes exception to the observation that the compromise in the absence of the first defendant and without adjudicating their right, is not allowable and hence the compromise was deferred for consideration after adjudication of the Suit. It is pointed out that there can be consent decree with some parties at one stage. 5. The compromise petition was actually not before the said court. It is no doubt pending consideration. In a case where a compromise is arrived at between some of the parties, it may be permissible to pass a decree in terms of the compromise. FAO.NO.266/09 4 But, where a compromise is not between all the parties, the court may have to consider the effect of such a compromise where the rights of those who are not parties may be affected. We would think that the court below ought not to have observed that the compromise petition is to be taken up after adjudication of the Suit. But, we make it clear that we express no opinion on the question as to whether the compromise alleged to be arrived at between the appellant and the second respondent is to be acted upon and decreed in terms of the said compromise. But, at the same time, it may not be correct also to say without anything more, particularly in the present IA., that the compromise is to be deferred for consideration after adjudication of the Suit. We allow this Appeal and the prayer in the Application is allowed and the interim order of injunction shall stand vacated. We, however, make it clear that this is not to be understood as meaning that we have given our seal of approval to the alleged compromise between the appellant and the second respondent and that is a matter to be considered by the court below FAO.NO.266/09 5 independently. It is open to the parties to move for consideration of the said compromise before adjudication of the Suit. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge