Ramachandran Nair, J.
This appeal is filed against the order dated 09.08.2012 in I.A.No.3242 of 2012 in O.S.No.575 of 2012 pending before the IInd Additional Sub Court, Ernakulam. By the impugned order the learned Sub Judge disallowed the prayer for granting the interim injunction.
2. The appellant herein is the plaintiff in the suit. The suit is one claiming partition and to set aside the decree in O.S.No.78 of 1986 before the Munsiff's Court, Ernakulam, and for a permanent prohibitory injunction against execution of the said decree. The respondents herein are defendants 8 and 9 (the decree holders in O.S.No.78 of 1986).
3. We heard the learned Counsel Sri S.V.Balakrishna Iyer for the appellant and the learned counsel for the respondents Sri V.K.Isac. It is submitted by the learned counsel for the appellant that the appellant had a strong prima facie case and therefore the refusal to grant the prayer for interim injunction is not justified. We were taken through the pleadings of the parties and the background of the case.
4. The learned counsel for the respondents Sri Isac submitted that during the pendency of the I.A itself, the property has been delivered in the execution proceedings. But after the interim injunction order was passed by this Court in this appeal, the appellant has trespassed into the property. It is therefore prayed that the interim order of injunction may be vacated. It is also submitted that the appellant has no case on the merits of the matter and the decree in O.S.No.78 of 1986 is a valid one. It is also stated that the appellant is not a party to the said suit.
5. We are of the view that if an order is passed by us by accepting the case of the appellant or refusing the plea of the appellants or by accepting the case of the respondents, that will prejudice the contentions of the parties in the pending suit. Therefore, we refrain from going into the merits of the case.
6. Since it is submitted that delivery has been effected in execution of the decree in O.S.No.78 of 1986, the interim order passed by this Court requires a modification. If there is a subsequent trespass of the property by the appellant or anybody else, the respondents will have to work out their remedies before the concerned court and we are not making any observation on the same. Sri Isac further submits that the respondents are prevented from moving the court concerned in view of the interim order passed by this Court. Therefore, we dispose of the appeal in the following terms:
i) The interim order of injunction granted by this Court dated 04.12.12 is vacated;
ii) The decree holder in O.S.No.78 of 1986 will not alienate the property or make any construction in the property pending the present suit;
iii) We direct the trial court to expedite the trial of the suit rtr/ The appeal is accordingly disposed of. No costs.
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(T.R.RAMACHANDRAN NAIR, JUDGE) Sd/-
(P.V.ASHA, JUDGE) /true copy/ P.S to Judge