KUNHIMOIDEEN Vs. THALEKKARA SULAIKHA

JUDGEMENT

(1.) 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 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 existed and the defendants were free to assign the properties .