O.P.(C) No.1239/2018 & 1451/2019

**O.P.(C) No.1239/2018 & 1451/2019** 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM CR** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** ## **OP(C).No.1451 OF 2019** **AGAINST THE COMMON ORDER/JUDGMENT IN CMA NOS.6/2018 AND 9/2018 OF SUB COURT, TIRUR** **AGAINST THE ORDER IN IA NO.1448/2017 IN IA NO.2416/2014 IN OS 387/2014 OF MUNSIFF COURT ,PARAPPANANGADI** ## **PETITIONER/1ST RESPONDENT AND 1ST APPELLANT/1ST PETITIONER/1ST PLAINTIFF:** **KUNHIMOIDEEN@BAVA, AGED 62 YEARS** **THALEKKARA HOUSE, POST NEDUVA, TIRURANANGADI TALUK, CHIRAMANGALAM SOUTH, PARAPPANANGADI, MALAPPURAM DISTRICT, PIN 676 303.** **BY ADVS. SRI.K.M.SATHYANATHA MENON SRI.B.G.BHASKAR** ## **- RESPONDENTS/APPELLANTS 1 4 AND 2NDRESPNDENT AND RESPONDENTS 1 TO4 AND 2ND APPELLANT/RESPONDENT 1- 4 AND 2ND PETITIONER/DEFENDANTS AND 2ND PLAINTIFF:** - **1 THALEKKARA SULAIKHA, W/O. MUSTAFA, MAPPOOTTU ROAD, P.O PARAPPANAGADI, TIRURANGADI TALUK, MALAPPURAM 676 303, NOW RESIDING AT MAPOOTTU ROAD, P.O PARAPPANANGADI, MALAPPURAM 676 303** - **2 THALEKKARA AYISHA BEEVI, W/O. MOIDEENKOYA, NALLALAM, MODERN P.O, KOZHIKODE 673 655, NOW RESIDING AT MUNAR MANZHIL , MODAN, P.O KOLATHARA, KOZHIKODE 673 655** - **3 THALEKKARA NOORJAHAN, W/O. ALAVI, A.P BAZAR, P.O MUNNIYOR, VIA. THIRURANGANDI, MALAPPURAM 676 306, NOW RESIDING AT A.P BAZAR, P.O MUNNIYOOR, VIA TIRURANGADI, MALAPPURAM 676 306.** **O.P.(C) No.1239/2018 & 1451/2019** 2 **4 THALEKKARA KHAIRUNNISA, W/O. SALEEM, THAZHE PALAM, C/O. BAPPU STUDIO, P.O TITUR, MALAPPURAM 676 101, NOW RESIDING AT THAZHAPPALAM, P.O TIRUR, MALAPPURAM 676 101. 5 THALEKKARA MUSTHAFA, S/O. BEERANKUTTY, P.O PALATHINGAL, ULLANAM, MALAPPURAM 676 303, NOW RESIDING AT P.O ULLANAM, PALATHINGAL, VIA. PARAPPANANGADI, MALAPPURAM 676 303. ADV.SRI.T.KRISHNANUNNI (SR.) R1-4 BY ADV. SMT.MEENA.A. R1-4 BY ADV. SRI.VINOD RAVINDRANATH R1-4 BY ADV. SMT.M.R.MINI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-10-2019, ALONG WITH OP(C)No.1239/2018(O), THE COURT ON 10-02-2020 DELIVERED THE FOLLOWING:** **O.P.(C) No.1239/2018 & 1451/2019** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** ## **O.P.(C)No.1239 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CMA 3/2018 DATED 11-04-2018 OF SUB COURT, TIRUR** **AGAINST THE ORDER IN IA NO.191/2018 IN OS 27/2018 OF MUNSIFF COURT ,PARAPPANANGADI** ## **PETITIONER/S:** **K.ALAVI ABOOBACKER AGED 59, S/O. KUNNUMMAL ALAVI, KUNNUMMAL HOUSE, MOONIYUR AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **SRI.T.KRISHNANUNNI (SR) BY ADVS. SRI.VINOD RAVINDRANATH SRI.ASHWIN SATHYANATH SMT.M.R.MINI SMT.MEENA.A.** ## **RESPONDENT/S:** **T.KUNHIMOIDEEN @ BAVA AGED 61, S/O. BEERANKUTTY, THALEKARA HOUSE, NEDUVA AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **R1 BY ADV. SRI.BIJU ABRAHAM R1 BY ADV. SRI.B.G.BHASKAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-10-2019, ALONG WITH OP(C)No.1451/2019, THE COURT ON 10-2-2020 DELIVERED THE FOLLOWING:** ## **JUDGMENT** **[ OP(C)Nos.1451/2019, OP(C).1239/2018 ] Dated this the 10[th] day of February 2020** The first plaintiff in OS No.387/2014 of the Munsiff Court,Parappanangadi, aggrieved by the common order in CMA Nos.6/2018 and 9/2018 of the Sub Court, Tirur which modified by order in IA No.1448/2017 in IA No.2416/2014, has preferred O.P.(C) No.1451/2019. 2. Defendants 1 to 4 in the above suit are arrayed as respondents 1 to 4. Second plaintiff is arrayed as the 5[th] respondent in the original petition. The suit was one for partition of the plaint schedule properties that belonged to the mother of the plaintiffs and the defendants. Defendants resisted the suit contending that they had exclusive right over the properties and that the properties were not partible. Along with the suit. I.A.No.2416/2014 was filed seeking an order of injunction restraining the defendants from alienating the plaint schedule properties. It was allowed ex parte, by order dated 5/11/2014, restraining the defendants from alienating the plaint schedule property and creating any document on the strength of gift deed No. 1644/1985, claimed to have been executed by the mother **O.P.(C) No.1239/2018 & 1451/2019** 5 of the plaintiffs and the defendants. After hearing defendants, the ex parte injunction was made absolute on 12/8/2015. The suit was dismissed for default on 3/6/2016. Suit was later restored by order dated 20/9/2016 in IA No. 1327/2016. 3. According to the plaintiffs, long after the restoration of suit, defendants 1 to 4 executed a sale deed and release deed in relation to the plaint schedule properties, creating rights in favour of a third party on the strength of gift deed No.1644/1985. IA No. 1448/2017 was filed by the plaintiffs in IA No.2416/2014 for arrest and detention of the defendants 1 to 4 under Order 39 Rule 2A CPC for alleged violation of injunction order. Defendants appeared and admitted the execution of the sale deed. However, they contended that with the dismissal of the suit, injunction stood vacated and did not get revived, in the absence of a specific order. It was contended that after the dismissal of the suit, defendants had filed IA No1330/2016 on 7/6/2016 to intimate the SRO concerned about the dismissal of the suit and the consequential order vacating the interim injunction. This application was allowed and by communication dated 18/6/2016, it was communicated to the SRO concerned. Though suit was restored, the order of injunction granted earlier was not restored. It was contended that in the light of the above, no legally enforceable injunction order **O.P.(C) No.1239/2018 & 1451/2019** 6 existed and the defendants were free to assign the properties . 4. The trial court on facts held that neither at the time of dismissal of suit or its later restoration, there was no specific reference to any of the ancillary order. There was no exclusion of automatic revival of ancillary order by implication also. Hence, the court held that ancillary order was also automatically revived. Consequently,it was hence held that order of injunction was violated by the defendants. However, the court proceeded to hold that the object of Order 39 Rule 2A CPC was not to punish the violator, but to enforce the order of the court. Hence, the request for arrest and detention of the defendants was disallowed and the court ordered attachment of the plaint schedule property that belonged to the defendants, to compel them to obey the injunction order. 5. The above order was challenged by the plaintiffs 1 and 2 in CMA No.9/2018 contending that the court below ought to have ordered arrest and detention of the defendants. Defendants 1 to 4 filed CMA No.No.6/2018 challenging the finding that the defendants have violated the order. By a common order, the lower appellate court allowed CMA No.6/2018 and dismissed CMA No.9/2018 holding that the injunction order, which stood dismissed along with the suit for default, will not stand revived automatically **O.P.(C) No.1239/2018 & 1451/2019** 7 with the restoration of the suit. The order of attachment passed in IA No.1448/2017 was set aside. The above order is under challenge in O.P.No.1451/2019. 6. In O.P.(C)No.1239/2018, the petitioner, who is the defendant in OS No.387/2014, challenges the judgment in CMA No.3/2018 of the Sub Court, Tirur, by which the order of the Munsiff Court, Parappanangadi in I.A.No.191/2018 in O.S.No.27/2018 was modified. 7. OS No.27/2018 was filed by the respondent in the original petition No.1451/2019 seeking a decree of permanent prohibitory injunction. He claimed that the plaint schedule properties belonged to mother of himself and his brother Musthaffa. After her death, the property devolved on them. They had filed O.S.No.387/2014 before the court of Munsiff, Parappangangadi against their sisters seeking partition of the property. In that suit, an order of injunction was passed restraining the defendant from alienating the property involved. In the present suit, it was alleged that, violating the order, the property was sold to the defendant who was attempting to make constructions. Hence, the above plaintiff sought an interim injunction against construction in the property. Defendant appeared and filed an objection contending that he had validly purchased the property, was attempting to **O.P.(C) No.1239/2018 & 1451/2019** 8 construct a house in that property and the construction of the building will only add value to the property. The prayer for injunction restraining him from constructing any building in the property was hence resisted. 8. The court below, on the basis of the available materials, held that the commissioner had found that construction was completed. Though it was claimed by the plaintiff that in O.S.387/2014 an injunction was granted against alienation, the learned Munsiff, after perusing the records of that case, noticed that the earlier suit had been dismissed for default. The learned Munsiff held that, if the property was found to be partible, the principle of lis pendens would apply. It was also held that the construction will add to the value of the property. Consequently, the Learned Munsiff dismissed the injunction application. 9. This order was challenged before the Sub Court by the plaintiff in CMA No.3/2018 The appellate court, on an evaluation of facts, held that the defendant in O.S.No.387/2014 had sold the property to the defendant in OS No.27/2018 while the injunction was in force. Hence, the appellate court held that even if construction was effected, it will have the effect of a forcible partition. Consequently, the appellate court held that the plaintiff was entitled for an injunction restraining the defendant from **O.P.(C) No.1239/2018 & 1451/2019** 9 constructing the building. Accordingly, the injunction was granted . That judgment is under challenge in O.P.No.1239/2018. 10. Heard both the original petitions together, since common questions of fact and law arises. 11. The essential facts are not in dispute. The short question that arises in both the cases is whether ancillary order/interim injunction passed in O.S.No.387/2014, which was dismissed for default, would stand automatically revived on the restoration of the suit. 12. Learned counsel for the petitioner in O.P.No.1239/2018 relied on the decisions reported in _**Balwindar Kumar v . Rajinder Kumar and Others (2005 KHC 5973)**_ . _**Aravindaksha Menon and others v. Raghava Menon (2007 (2) KHC 287), Vareed Jacob v. Sosamma Geevarghese [2004 KHC 639]**_ and _**Vidur Impex and Traders Pvt.Ltd.and Others v. Tosh Apartments Pvt.Ltd.and Others (2012 KHC 4447)**_ . 13. In **Balwinder Kumar's** case,(supra) the question that arose for consideration was whether proceedings were liable to be initiated against the contemnor who allegedly assigned the property in violation of the injunction order . On facts the court found that the contemnor had notice regarding the existence of injunction order and that it was in force while the assignment was **O.P.(C) No.1239/2018 & 1451/2019** 10 effected. On that factual premise, it was held that prosecution was sustainable. 14. In **Aravindaksha Menon's** case(supra) the question that arose for consideration was regarding the scope of Order 39 Rule 2A CPC. In that case, proceedings sought to be initiated under Order 39 Rule 2A CPC was opposed on the ground that though interim order of injunction was granted initially, ultimately, the suit was dismissed after trial. The question that came up before the court in that case was whether the proceedings under Order 39 Rule 2A CPC could be resisted on the ground that ultimately the suit was dismissed by vacating the order of injunction granted earlier.Learned Single Judge of this court held that the attachment contemplated under Order 39 Rule 2A CPC was intended to compel the party to obey the order, whereas the provision for arrest and detention was intended in a case where the party has violated the order. 15. In _**Surjit Singh and Others v. Harbans Singh and Others (1995 KHC 958),**_ the Hon'ble Supreme Court held that if assignment was made in defiance of restraint order, the court has the duty, as also the right to treat the alienation/assignment as nonest, as if they have not taken place at all, for all practical purposes. In **Vidur Impex and Traders Pvt. Ltd. Case (cited** **O.P.(C) No.1239/2018 & 1451/2019** 11 **supra)** , the question that aroses was regarding the scope of assignment made in violation of the injunction order. 16. Since the crucial question that arises in this case was whether the injunction order was in existence as on the date of assignment, none of the above decisions has any direct application to the facts of the case. However, it seems that the decision in Vareed Jacob's case, relied on by both sides is directly applicable to the facts of this case. In that case, suit was filed before the Munsiff Court, Kottarakkara as O.S.No.332/1122(ME) seeking partition of the property. The suit was decreed on 21/5/1965. The third defendant in that suit filed O.S.No.209/1969 on 25/6/1969 against the decree holder in O.S.No.332/1122(ME) for setting aside the decree in that suit. On 25/6/1969, an order of temporary injunction was granted against the execution of decree in OS No.332/1122(ME). On 2/4/1973 O.S.No.209/1969 filed by the third defendant was dismissed for default. It was restored on 20/12/1974. Thereafter, suit was dismissed on merits on 21/3/1975. When the decree in OS No.332/1122 (ME) was put in execution, it was resisted on the ground that the execution petition was barred by limitation, since it was not filed within 12 years from the date of the decree, viz. 21/5/1964. Contention was set up by the decree holder that in the light of the injunction order granted in **O.P.(C) No.1239/2018 & 1451/2019** 12 O.S.No.209/1969 the decree holder was precluded from initiating execution proceedings. This was countered by the contention that the suit stood dismissed for default on 2/4/1973 and thereafter notwithstanding the restoration of the suit, there was no further order of injunction and consequently the interim injunction order did not get revived automatically. 17. The short question that the Supreme Court was called upon to consider was whether on the restoration of the suit, the interim order of injunction/ancillary order would stand revived. 18. Hon'ble Supreme Court referred to a catena of decisions to answer the above. The apex court referred to the decision in _**Nandipati Rami Reddi v. Nandipati Padma Reddy ( AIR 1978 AP 30),**_ in which the Division Bench held that when the suit dismissed for default was restored, the interim orders and their operation during the period of interegnum would stand revived and the plaintiff must be restored to the position in which he was situated, when the court dismissed the suit for default and consequently all interlocutory orders passed before the order of dismissal would also stand revived along with the suit when the order of dismissal was set aside and the suit was restored, unless the court expressly or by implication excluded the operation of interlocutory orders during the period between the dismissal and **O.P.(C) No.1239/2018 & 1451/2019** 13 the restoration. 19. The Supreme Court posed to itself the question whether there could be an automatic revival of the interim orders, with the restoration of the suit, unless circumstances occurring during interregnum or the orders passed by the court speak to the contrary. The court held that section 94 of CPC dealt with supplemental proceedings which, inter alia, empowered the court to pass interim orders depending upon the circumstances prescribed by the Code. The Supreme Court referred to the decision in _**Abdul Hamid v . Karim Bux & Ors( AIR 1973 Allahabad 67),**_ wherein it was held that on the dismissal of the suit in default, attachment before the judgment automatically ceased and does not revive on the restoration of the suit. In coming to this conclusion, the Allahabad High Court had placed reliance on the earlier decision of the same High Court in _**Ram Chand v. Pitam Mal(1888) ILR 10 ALL 506)**_ . Ramachand's decision(supra) was followed In _**Raj Chandra Gupta v. Ramesh Kishore ( AIR 1965 Allahabad 546),**_ and in _**Nagar Mahapalika v. Ved Prakash ( AIR 1976 All.264).**_ In the former decision, it was held that on the dismissal of the suit, either on merits or default, attachment before the judgment ceased and would not revive automatically on restoration of the suit. In the later decision, it was held that the **O.P.(C) No.1239/2018 & 1451/2019** 14 interim injunction came to an end on dismissal of the suit for default and it would not get automatically revived on restoration. 20. The Supreme Court held that the decision of the Allahabad High Court in Ram Chand v.Pitam Mal (cited supra) was under the provisions of the earlier CPC 1859. It was held that Civil Procedure Code 1908 has made substantial changes with regard to the attachment before judgment. Under Order 38 Rule 1, an extraordinary relief was given to the plaintiff, namely, in appropriate cases where the court finds a strong prima facie case in favour of the plaintiff and if the court is satisfied that the defendant was likely to defeat the decree in future as and when it was passed, then the court shall grant attachment even before the final adjudication of the claim of the plaintiff. Hence, it was an extraordinary relief given to the plaintiff by the court. However, under Order 39 Rule 9, the court shall order withdrawal of attachment when the suit was dismissed. Therefore, Rule 9 makes it mandatory for the court to lift the attachment at the time of dismissal of the suit. Such a provision was not there under Order 39 or under Order 40. The court held that while considering the Nagar Mahapalika's case (supra), the Allahabad High Court did not notice this essential distinction. Supreme Court held that all the earlier judgments of the Allahabad High Court related to Order **O.P.(C) No.1239/2018 & 1451/2019** 15 38 and not to Order 39. It was held that attachment was a part of the execution process and granted to protect the decree. Under Order 38 Rule 11, it was provided that when the suit was decreed, the court will continue attachment before the judgment and the plaintiff was not required to re-apply for attachment. The scheme of Order 38 was different from Order 39 or Order 40. Hence, attachment under Order 38 cannot be compared with power of the court to grant temporary injunction under Order 39 as interlocutory orders. Similarly Order 21, Rule 57 indicates the duty on the courts to order whether the attachment shall continue or cease on the dismissal of the execution suit. 21. In _**Shiva v. Sharanappa ( AIR 1968 Mysore 238)**_ , it was held that the question whether restoration of the suit would revive the anciallary orders passed before the dismissal of the suit, depended upon the terms in which the order of dismissal was passed and the terms in which the suit was restored. If the court dismissed the suit for default, without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit was restored. However, if the Court dismisses the suit specifically vacating the ancillary orders, then restoration would not revive such ancillary orders. In _**Sarantha Ayyangar v. Muthiah Moopanar & Ors. ( AIR 1934 Madras 49)**_ it was held that **O.P.(C) No.1239/2018 & 1451/2019** 16 on restoration of the suit dismissed for default all interlocutory matters would stand restored, unless the order of restoration says to the contrary. Hence, it was held that as a matter of general rule, on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum, between the dismissal of the suit and restoration, there was any alienation in favour of the third party. 22. Patna High Court in _**Bankim Chandra v . Chandi Prasad (AIR 1956 Patna 271)**_ held that orders of stay pending disposal of the suit were ancillary orders and they were meant to supplement the ultimate decision arrived at in the main suit and, therefore, when the suit, dismissed for default, was restored by the order of the Court all ancillary orders passed in the suit shall revive, unless there was any other fact on record or in the order of dismissal to show to the contrary. 23. The Supreme Court, after referring to views expressed by various High Courts, considered its earlier decisions in _**Nancy John Lyndon v. Prabhati Lal Chowdhury(1987 (4) SCC 78).**_ In that case ,it was held that in view of Order 21 Rule 57 CPC, it was clear that with the dismissal of the execution suit for default, the attachment levied earlier ceased. It was further held that when the dismissal was set aside and the suit was restored, **O.P.(C) No.1239/2018 & 1451/2019** 17 the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. The Supreme Court reiterated that the decision in Nancy John Lyndon's case(cited supra) was under Order 21 Rule 57 whose scheme was similar to Order 38 Rule 11 and Rule 11A CPC. Consequently,the court held that all interlocutory orders cannot be considered on the same basis. 24. On the above analysis, the majority of the three judges Bench in Vareed Jacob's case(supra) answered the legal issue holding that the decree holder was entitled to exclude the period between 25/6/1969, the date of granting of injunction till 21/3/1975, when the suit was dismissed and the injunction was ultimately vacated. This clearly shows that the Supreme Court by a majority decisiion held that, on restoration of the suit dismissed for default, injunction order would stand revived. This is clear from the minority view of His Lordship Justice Sinha, who held the view that the interim order of injunction will not be revived on restoration of the suit. However, it was held that courts would be well advised keeping in view the controversy, to specifically pass an order when the suit was dismissed for default stating whether interlocutory orders are vacated and on restoration of the suit, whether it will stand restored. **O.P.(C) No.1239/2018 & 1451/2019** 18 25. In the background of the law settled in Vareed Jacob's case, the issue involved in the present case has to be answered. The court in the process of adjudication of the suit, normally passes interim, supplementary or ancillary orders, under the various provisions of the CPC. The above orders are passed to aid the progress of the suit. They may take the form of injunctions, attachment, appointment of commission, appointment of receiver, direction to deposit rent and profits,etc. Such orders are expected to continue till the suit is disposed of or until further orders are passed. It may be correct to say that on the dismissal of the suit, all such interim orders come to an automatic end, except where explicitly or by implication the court passes order vacating any order, or if statute prescribes otherwise. 26. It would be highly illegal and would not stand to logic, if it is held that none of the interlocutory orders could not revive, notwithstanding the restoration of the suit. It cannot be expected that after restoration of the suit, the party in whose favour interim orders were granted, should file fresh application to restore each of the earlier orders. However, situation would be different if, while passing an order dismissing the suit either by implication or by specific order, any of the interlocutory order is vacated. In such case, it may not be reasonable and logical to conclude that on **O.P.(C) No.1239/2018 & 1451/2019** 19 restoration, such interim order will stand restored without any specific order. However, situation will again be different, if specific order is passed at the time of restoration, confining the effect of restoration to certain interim orders only. Otherwise, it can generally be stated that all such interlocutory orders will stand automatically revived on restoration of the suit, with notice to the parties with effect from the date of order. 27. This seems to be the spirit of the judgment in Vareed Jacob's case (Supra) and the consistent view of several High Courts. In the light of the above discussion and in the absence of any contrary statutory provision, the emerging legal position would be as follows: a). On the dismissal of the suit for default, all the interim orders will stand terminated unless the court by express order or by necessary implication specify that any order will continue. b). On restoration of the suit dismissed for default, with notice to opposite party, all the interlocutory orders will automatically stand restored from the date of restoration, unless the court, by a specific order or by necessary implication confines the restoration order to specific interim orders. The effect of such restoration of interim orders will only be prospective and will not cover the period after dismissal of suit and before its restoration. **O.P.(C) No.1239/2018 & 1451/2019** 20 c). If at the time of dismissal of the suit any order is specifically or by due implication is vacated, it will not get automatically restored on the restoration of the suit. A separate application will have to be filed for restoration. 28. Applying the above principle, it has to be held that in the case at hand there was a specific order passed by the court below. after the dismissal of the suit. Defendants had applied to the court below for communicating to the SRO the order vacating the injunction in IA No.2416/2014. By order dated 14/6/2014 IA No.1330/2016 was allowed and the Registry intimated about vacating of the injunction order passed in IA No.2416/2014. This clearly shows that on dismissal of the suit,interim order stood vacated. In the absence of any specific order restoring the interim order, it cannot be stated that in the case at hand, the interim order stood revived. Hence, the sale effected thereafter cannot be stated to be in violation of the order of injunction granted by the court below. 29. Consequently, the common judgment passed by the court below in CMA Nos.6/2018 and 9/2018 is liable to be sustained. The injunction granted by the court below by judgment in CMA No.3/2018 in modification of the order in IA No.191/2018 on a **O.P.(C) No.1239/2018 & 1451/2019** 21 premise that on restoration of the suit, injunction stood revived is liable to be set aside. Consequently, the order in CMA No.3/2018 is liable to be set aside and IA No.191/2018 in OS No.27/2018 stands dismissed. In the result, O.P.No.1451/2019 stands dismissed. O.P.No.1239/2018 stands allowed setting aside the judgment in CMA No. 3/2018 of the Sub Court , Tirur. IA No.191/2018 stands dismissed. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** **O.P.(C) No.1239/2018 & 1451/2019** 22 ## **APPENDIX OF OP(C) 1451/2019** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 12/8/2015 IN I.A NO. 2416 OF 2014 IN O.S NO. 387/2014 ON THE FILES OF THE MUNSIFF COURT, PARAPPANGANADI** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 25-08-206 IN I.A NO 1327 OF 2016 IN O.S NO 387/2014 ON THE FILES OF THE FILES OF THE MUNSIFF COURT, PARAPPANANGADI** - **EXHIBIT P3 TRUE COPY OF I.A NO. 1448 OF 2017 IN I.A NO. 2416 OF 2014 IN O.S NO. 387/2014 ON THE FILES OF THE MUNSIFF COURT, PARAPPANANGADI.** - **EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT TO 1 TO 4/DEFENDANTS IN I.A NO. 1448 OF 2017 IN I.A NO. 2416 OF 2014 IN O.S NO. 387/2014 ON THE FILES OF THE MUNSIFF COURT, PARAPPANANGADI.** **EXHIBIT P5** - **TRUE COPY OF THE ORDER DATED 3/4/2018 IN I.A NO. 1448 OF 2017 IN I.A NO. 2416 OF 2014 IN O.S NO. 387/2014 ON THE FILES OF THE MUNSIFF COURT, PARAPPANANGADI.** - **EXHIBIT P6 TRUE COPY OF C.M.A NO. 9 OF 2018 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, TIRUR.** - **EXHIBIT P7 TRUE COPY OF C.M.A NO 6 OF 2018 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, TIRUR.** - **EXHIBIT P8 TRUE COPY OF THE COMMON ORDER DATED 21-2-2019 IN C.M.A NO. 6 OF 2018 AND C.M.A NO. 9 OF 2018 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, TIRUR.** **O.P.(C) No.1239/2018 & 1451/2019** 23 ## **APPENDIX OF OP(C) 1239/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTERED GIFT DEED NO. 1644/1985, S.R.O., PARAPPANAGADI, DATED 31.08.1985.** - **EXHIBIT P2 TRUE COPY OF THE THANDAPER ACCOUNT OF THE PLAINT SCHEDULE PROPERTY DATED 19.06.2017.** - **EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S.NO. 387/2014 FILED BEFORE MUNSIFF COURT, PARAPPANANGADI DATED 05.11.2014.** - **EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO. 387/2014, MUNSIFF COURT, PARAPPANANGADI, DATED 18.11.2014.** - **EXHIBIT P5 TRUE COPY OF THE ORDER OF INJUNCTION IN O.S.NO. 387/2014, MUNSIFF COURT, PARAPPANANGADI, DATED 06.11.2014.** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 18.06.2016 ISSUED BY THE MUNSIFF OF PARAPPANANGADI.** - **EXHIBIT P7 TRUE COPY OF THE PLAINT IN O.S.NO. 27/18 FILED BEFORE MUNSIFF COURT, PARAPPANANGADI DATED 20.01.2018.** - **EXHIBIT P8 TRUE COPY OF I.A.NO.191/2018 IN O.S.NO. 27/2018 FILED BEFORE MUNSIFF COURT, PARAPPANANGADI DATED 22.01.2018.** - **EXHIBIT P9 TRUE COPY OF THE DETAILED COUNTER AFFIDAVIT TO EX.P8 APPLICATION IN 16.02.2018 FILED BY THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF THE ORDER IN I.A.NO. 191/2018 IN O.S.NO.27/2018, MUNSIFF COURT, PARAPPANANGADI, DATED 02.03.2018.** - **EXHIBIT P11 TRUE COPY OF THE ORDER OF THE SUBORDINATE JUDGE OF TIRUR IN C.M.A.NO. 3/2018 DATED 11.04.2018.** **EXT.R1(A):COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER HEREIN TO THE PARAPPANANGADI MUNICIPALITY DATED 29/11/2018** **EXT.R1(B): COPY OF THE ORDER DATED 5/11/2018 BY THE SECRETARY OF PARAPPANANGADI MUNICIPALITY AGAINST THE CONSTRUCTION COMPANY M/S.GRAPHIC** **O.P.(C) No.1239/2018 & 1451/2019** 24 ## **BUILDERS.** **EXT.R1(C): COPY OF THE NOTICE ISSUED BY THE SECRETARY OF PARAPPANANGADI MUNICIPALITY DATED 5/11/2018 TO THE CONSTRUCTION COMPANY M/S.GRAPHIC BUILDERS.** **EXT.R1(D): COPY OF THE ORDER DATED 5/11/2018 BY THE SECRETARY TO PARAPPANANGADI MUNICIPALITY TO THE RESPONDENT.** **EXT.R1(E): COPY OF THE REQUEST MADE BY THE SECRETARY OF PARAPPANANGADI MUNICIPALITY TO THE SATION HOUSE OFFICER OF THE PARAPPANANGADI POLICE STATION DATED 19/11/2018** **EXT.R1(F): COPY OF THE REQUEST MADE BY THE SECRETARY OF PARAPPANANGADI MUNICIPALITY TO THE SATION HOUSE OFFICER OF THE PARAPPANANGADI POLICE STATION DATED 23/11/2018** **EXT.R1(G): COPY OF THE INTIMATION GIVEN BY THE SECRETARY OF PARAPPANANGADI MUNICIPALITY TO THE STATION HOUSE OFFICER OF THE PARAPPANANGADI POLICE STATION DATED 30/11/2018.**