IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 FAO.No. 111 of 2007() --------------------- AGAINST THE ORDER IN IA.325/07 IN IN I.A.806/2004 IN OS.91/2004 of SUB COURT, OTTAPPALAM .................... APPELLANTS/RESPONDENTS/LRS OF PLAINTIFF. --------------------------------------------------------------------- 1. RAJAMMA, WIDOW OF PARAKOTTIL GOPALAN. 2. P.G.CHANDNIVAS, S/O LATE PARAKOTTIL GOPALAN. 3. P.G.THARA, D/O LATE PARAKOTTIL GOPALAN, ALL ARE RESIDING AT VELLINEZHI AMSOM KUTTANASSERY DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): PETITIONER/9TH DEFENDANT: -------------------------------------------------------------------- VIJAYAN, S/O PARAKOTTIL KRISHNAN @ KITTA RESIDING AT VELLINEZHI AMSOM, KUTTANASSERY DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.MILLU DANDAPANI FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 111 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2009. JUDGMENT Raman, J, This appeal is against an order vacating the order of injunction in regard to item No.7 of the plaint schedule property at the instance of the 9th defendant, who was also co-owner of the property. The suit is on for partition. Though an earlier order of injunction was passed, 9th defendant sought to vacate the order of injunction on the ground that item No.7 property was originally mortgaged by the deceased first plaintiff along with the first defendant to avail a loan and on default the Bank, for the reasliasation of the amount due, sold the property in public auction and knock down by the 9th defendant. But the fact remains that the 9th defendant is a co-owner. The court below vacated the injunction taking note of the auction held by the Bank and taking the view that if the plaintiffs have got any grievance against the sale, their remedy is to challenge the genuineness of the sale and to FAO. 111/2007. 2 get it set aside or to get a declaration that it was not binding on them. 2. Learned Senior Counsel appearing for the appellant would submit that on coming to know of the transaction of the Bank and subsequent sale, they amended the plaint incorporating a prayer to set aside the transaction alleging that the said transaction is a fraudulent one to defeat the rightful claims of other co-owners. At the time of admission, this court passed an interim order restraining the respondent from committing any act of waste or further alienating item No.7 of the plaint schedule property in O.S.91 of 2004 pending disposal of the suit. That interim order continues even as on today. 3. We do not think that in the factual background any materials are placed to indicate that a change has to be brought out in the status quo. The 9th defendant being a co-owner of the property and in the light of the fact that a prayer to set aside the transaction has already been incorporated by way of amendment, the whole matter is at large before the court below. It is necessary in the larger interests of justice to preserve the property until the disposal of the suit. There was an interim order passed by this court and it has to be made absolute FAO. 111/2007. 3 till the disposal of the suit, unless there any change in the circumstances is brought out. In the result, this appeal is allowed and the impugned order is set aside and the interim order passed by this court is made absolute until disposal of the suit. P.R. Raman, Judge P. Bhavadasan, Judge sb.