IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 266 of 2009()
1. P.S.BABURAM, S/O.MR.SAHADEVAN,
... Petitioner
Vs
1. MR.SREENIVASAN EMBRANDIRI,
... Respondent
2. M.K.LAXMIKUTTY AMMA, W/O.
For Petitioner :SRI.T.K.RADHAKRISHNAN
For Respondent :SRI.T.N.HAREENDRAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :16/12/2009
O R D E R
K. M. JOSEPH &
M. L. JOSEPH FRANCIS, JJ.
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F.A.O.NO. 266 OF 2009
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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