IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 FAO.No. 275 of 2005() --------------------- AGAINST THE ORDER IN IA 572/2005 IN AS.24/2005 of THE SUBORDINATE JUDGE, THALASSERY .................... APPELLANTS/RESPONDENTS/ RESPONDENTS: ---------------------------------------------------------- 1. CHEKINTAVIDA MUNAMBATH ABDUL NAZAR, S/O.ABDULLA, BRANCH MANAGER OF KERALA ROADWAYS LTD., CHEKKINTAVIDA HOUSE, VADAKARA AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. KERALA ROADWAYS LTD., KOZHIKODE, REP. BY ITS JOINT MANAGING DIRECTOR, MEETHALE KUNNATH SIRAJ, S/O.MOIDU HAJI, ROSE MAHAL, TRIKKOTTUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.V.SOHAN RESPONDENT(S)/ PETITIONER/ APPELLANT : --------------------------------------------------- PUTHIYONAN REEJA, W/O.BALARAMAN, RESIDING AT SARASWATHY SADANAM, PAZHASSI AMSOM, MATTANNUR DESOM, THALASSERY TALUK, KANNUR DISTRICT. ADV. SRI.R.SURENDRAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/09/2009, ALONG WITH FAO NO. 115 OF 2006 AND CRP 414/06, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NOS. 275 of 2005, 115 OF 2006 AND C.R.P. 414 OF 2006 = = = = = = = = = = = = = = = Dated this the 30th day of September, 2009. J U D G M E N T FAO 275/05 is preferred against the order passed in I.A.572/05 in A.S.24/05. It was an application filed by the plaintiff for injunction against defendants and their men or their assignees from committing any sort of waste in the petition schedule property or altering the lie of the land in any manner or effecting any kind of construction in the petition schedule property. 2. It is the case of the defendants that after the dismissal of the suit and before filing of the appeal the property has been transferred to one Jabbar Haji for valid consideration and he is in possession and enjoyment of property. In the counter to the injunction application though mention is made about the transfer the name of the transferee is not mentioned. Now it is the definite contention of the defendants that they are not in possession of the F.A.O. NOS. 275 of 2005 & other con. cases -:2:- property by virtue of the assignment deed. If they are not in possession of the property the question of they being restricted to do anything may not have effect and learned counsel for the appellant had submitted before me they are not having any intention to commit any waste or construction of the building, especially in the back drop that they are not in possession of the property. Learned counsel for the plaintiff would submit before me that under Or.22 Rule 10 it is optional to implead the assignee and he has relied upon the decision of the Division Bench of this Court reported in Cherukutty v. Velappu (1987 (1) KLT 565). In that decision this Court has held that if the assignee has confidence in the assignor he may remain in the background and allow the assignor to continue in the proceedings. The assignee even if he does not become a party to the suit is bound by the decision against the assignor who is a party to the suit. So the out come of the appeal will be binding on the assignee as well since even if he is not a party to the proceedings, he cannot take shelter on the ground that he has not been impleaded as a party. These matters can be elaborately considered in the appeal and therefore leaving F.A.O. NOS. 275 of 2005 & other con. cases -:3:- open these things to be decided by the appellate court, the FAO is closed. 3. In FAO 115/06, the attack is against the order in I.A.2503/05 in A.S.24/05. It was an I.A. filed under O.39 Rule 2-A of Code of Civil Procedure to initiate appropriate legal action against the defendants and award the maximum punishment. The Court below after consideration of the materials found that the properties have been assigned in favour of Jabbar Haj even at the time of filing of I.A. 572/05. The Court also found that no steps were taken by the I.A. petitioner to get a Commissioner appointed. So in the light of those facts the Court dismissed the order in the petition for violation of injunction which is perfectly in order and I do not think any ground to interfere with that decision. 4. C.R.P 414/06 is preferred against the order in I.A.2669/05 in A.S. 24/05. It is a petition filed by the advocate for the appellant to issue proper orders directing the SHO Mattannur to stop all acts of construction, storage of materials et. in the plaint schedule property. The Court did not entertain that application mainly on the ground that the defendants in the suit had raised a very specific contention F.A.O. NOS. 275 of 2005 & other con. cases -:4:- that the property had been transferred in favour of Jabbar Haji and he is in possession of the property. When such is the situation there is no point in ordering action against defendants 1 and 2 and therefore the Court below rightly dismissed the application which does not call for any interference. 5. Therefore FAO 275/05 is closed and FAO 115/06 and CRP 414/06 are dismissed. I direct the learned Principal Subordinate Judge, Thalassery wherein A.S.24/05 is pending to dispose of the appeal making it very clear that the observations in this order shall not bind him and he is free to take a decision on all points including the question that may come up for consideration under Or.22 Rule 10 of Code of Civil Procedure. The Registry is directed to send back the records immediately. M.N. KRISHNAN, JUDGE. ul/-