IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 RSA.No. 682 of 2008 ----------------------- AS.81/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.616/1998 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT:APPELLANT/PETITIONER ----------------------------------------- LEELA PRABHAKARAN, AGED 53, W/O.PRABHAKA RAN HOUSE NO.43/1277 A, PACHALAM, ERNAKULAM. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENTS: RESPONDENTS/RESPONDENTS ---------------------------------------------------- 1. SASIDHARAN, AGED 51, S/O.NARAYANAN, KANASSERY HOUSE, THRIKKANARVATTOM DESOM, ERNAKULAM 2. RAJAN, AGED 59, S/O.KUMARAN, CHAKKANATHUMULLEPARAMBIL, THRIKKANARVATTOM DESOM PACHALAM PO., 3. OMANA, AGED 51, W/O.RAJAN, CHAKKANATHUMU LLEPARAMBIL, THRIKKANARVATTOM DESOM, PACHALAM PO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2008 ALONG WITH R.S.A. 683 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ----------------------------------------------------- R.S.A. Nos 682 and 683 of 2008 ----------------------------------------------------- Dated this the 29th July 2008 JUDGMENT These appeals are filed respectively against the judgments in A.S. Nos 81 and 80 of 2007 on the file of the VI Additional District Court, Ernakulam which arise respectively from the common order on I.A. Nos 2335 of 2003 and 1394 of 2006 in O.S. No 616 of 1998 on the file of the Sub Court, Ernakulam. 2. The appellants in both the appeals were the appellants in the concerned appeals filed before the first appellate court and the petitioners in the concerned I.As filed before the trial court. The first respondent is the decree-holder in O.S. No 616 of 1998 which was a decree for specific performance obtained by him as against respondents 2 and 3 basing on the agreement for sale of the schedule property. The said agreement was one dated 25.10.1997 and on the basis thereof the suit was filed by the first respondent against respondents 2 and 3 on 04.11.1998 for specific performance. While the said suit was pending, respondents 2 and 3 entered into Ext A8 agreement dated 30.11.1998 with the present appellant RSA 682 & 683/08 2 agreeing to sell the schedule property in her favour and pursuant thereto respondents 2 and 3 executed Ext A1 sale deed in favour of the appellant on 17.03.2001. Both Exts. A8 and A1 are subsequent to the institution of the suit based on Ext B1 agreement entered into by respondents 2 and 3 with the first respondent who was the plaintiff in the suit. Obviously the transfer is hit by lis pendens. The appellant filed I.A. No 2335 of 2003 under Order XXI Rule 97 of the C.P.C and I.A. No 1394 of 2006 for a declaration that sale deed No 834 of 2003 executed in favour of first respondent through court is not binding on her. That I.A was filed under Order XXI Rule 58 C.P.C. The trial court found both I.As as not maintainable and dismissed them and delivery of the decree schedule property was ordered with police protection. It is against the said common order on those two I.As that A.S. Nos 80/07 and 81/07 were filed before the first appellate court. The first appellate court dismissed both the appeals by common judgment against which these R.S.As arise. 3. At the time of admission hearing counsel for the appellant rightly submitted that he has no contentions to be advanced on merits of the case, the transfer being hit by lis pendens and that at least some time be granted to the appellant to locate another building RSA 682 & 683/08 3 to shift her residence lest she would be thrown out on the road. The submission requires favourable consideration. Appellant and her son were also present before court and the appellant is also heard. Considering the entire facts and circumstances of the case, I am of the view that three months' time can be granted to the appellant to surrender vacant possession of the schedule building and its premises to the first respondent. In the result I dismiss both the appeals as being devoid of merit as the appeals do not involve any substantial question of law for decision by this court. At the same time, I grant the appellant three months' time to surrender vacant possession of the schedule building and its premises to the first respondent. Trial court shall not order delivery within the said three months. Sd/- K.P. BALACHANDRAN Judge 29/07/2008 en [true copy]