Allowed

H.W.Wilson v. C.G Viswanatha Prabhu

Kerala HC2 Dec 2019RFA/372/2003

Case brief

AI extract

What is this about?

This judgment deals with a Regular First Appeal in a specific performance suit where appellants were pendente lite purchasers. The dispute was settled amicably via mediation under Section 89 CPC. The High Court allowed the appeal, set aside the trial court decree, and passed a decree based on the Memorandum of Agreement where appellants agreed to pay respondents Rs. 25 lakhs to secure joint title

What did the court decide?

Allowed appeal; set aside impugned judgment and decree; passed fresh decree in terms of Memorandum of Agreement settled by parties via mediation.

H.W.Wilson Vs C.G Viswanatha Prabhu — Specific Performance | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941

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RFA.No.372 OF 2003

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AGAINST THE JUDGMENT AND DECREE IN OS No.79/1997 DATED 11-08-2003 OF SUB COURT, CHERTHALA

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APPELLANTS/ADDITIONAL DEFENDANTS 2 AND 3:

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*1 H.W.WILSON, HOUSE NO C.C 18/2469, KONOTHU VEEDU, RAMESWARAM VILLAGE, PALLURUTHY VADAKKUM MURI, PALLURUTHY P . O , KOCHI TALUK.

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2 MARY WILSON, HOUSE NO C.C 18/2469 , KONOTHU VEEDU, RAMESWARAM VILLAGE, PALLURUTHY VADAKKUM MURI, PALLURUTHY P . O , KOCHI TALUK

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3 THOMAS ARAKKAL, AGED 46 YEARS,S/O H.W WILSON, ARAKKAL HOUSE, KUDAPURAM ROAD, ERAMALLOOR, CHERTHALA TALUK, PIN 688573

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4 ALEXANDER ARAKKAL, AGED 44 YEARS,S/O H.W WILSON, ARAKKAL HOUSE, KUDAPURAM ROAD, ERAMALLOOR, CHERTHALA TALUK, PIN 688573

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5 TREESA WILSON, AGED 39 YEARS,D/O H.W WILSON, ARAKKAL HOUSE, KUDAPURAM ROAD, ERAMALLOOR, CHERTHALA TALUK, PIN 688573

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***( LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 5 VIDE ORDER DATED 9/11/2018 IN IA 2/2018)**

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BY ADV. SRI.BABU CHERUKARA By ADV. ROSAMMA MATHEW

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RESPONDENT/PLAINTIFF/1ST DEFENDANT.:

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*1 C.G VISWANATHA PRABHU, MAVELIPARAMBU , VALAMANGALAM SOUTH P. O THURAVOOR, SOUTH VILLAGE.

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RFA.No.372 OF 2003 2

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**2 K. P SUKUMARAN, VINOD FABRICS, RESIDING AT LAKSHMI NILAYAM, PERUMPALLY VADAKKETHIL, ERAMALLOOR MURI, EZHUPUNNA VILLAGE.

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3 SANDHYA, W/O LATE C.G VISWANATHA PRABHU, MAVELIPARAMBU VALAMANGALAM SOUTH P O, THURAVOOR SOUTH VILLAGE PIN 688532

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4 ASWATHY, AGED ABOUT 17 YEARS,D/O LATE C.G VISWANATHA PRABHU, MAVELIPARAMBU VALAMANGALAM SOUTH P O,PIN 688532 THURAVOOR SOUTH VILLAGE. REPRESENTED BY HER MOTHER SANDHYA DO.DO

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5 ARATHY, AGED ABOUT 15 YEARS,D/O LATE C.G VISWANATHA PRABHU, MAVELIPARAMBU VALAMANGALAM SOUTH P O,PIN 688532 THURAVOOR SOUTH VILLAGE REPRESENTED BY HER MOTHER SANDHYA DO DO

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6 GOVIND,

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AGED ABOUT 13 YEARS, S/O LATE C.G VISWANATHA PRABHU, MAVELIPARAMBU VALAMANGALAM SOUTH P O,PIN 688532 THURAVOOR SOUTH VILLAGE REPRESENTED BY HER MOTHER SANDHYA DO.DO

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***(LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL R3 TO R6 AS PER ORDER DATED 22/05/2015 IN IA 411/2015)**

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****(THE NAME OF SECOND RESPONDENT (K.P SUKUMARAN) IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 02.12.2019 IN IA 1/2019)**

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R2 BY ADV. SRI.V.D.BALAKRISHNA KARTHA R2 BY ADV. SRI.C.S.ABDUL SAMMAD R1 BY ADV. SRI.T.R.HARIKUMAR R2 BY ADV. SRI.PRASUN.S

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA.No.372 OF 2003 3

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JUDGMENT

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Dated this the 2nd day of December 2019

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The appellants are additional defendants 2 and 3 in O.S No.79/1997 of Sub Court, Cherthala. The suit was filed seeking specific performance of an agreement for sale and it was decreed vide the judgment under challenge.

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Additional defendants 2 and 3 are pendente lite purchasers who were got impleaded in the suit during it's pendency. Their plea was that they were bonafide purchasers of the plaint scheduled property and purchased the same for valuable consideration. The trial court found on appreciation of evidence adduced by the parties that they cannot claim any better title than the first defendant has in the plaint schedule properties since the purchase was hit by the doctrine of lis

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RFA.No.372 OF 2003 4

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pendens . Accordingly, they were held as bound by the result of the suit. The suit was decreed by granting a decree for specific performance in favour of plaintiff. Additional defendants 2 and 3 have approached this Court in appeal against the judgment. First additional defendant, who is the first appellant died during the pendency of appeal.

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In the meantime, the issues involved in the appeal have been amicably settled among the parties to the appeal in a mediation process. The mediator concerned has filed a report alongwith the Memorandum of Agreement executed by the parties under Section 89 of the Code of Civil Procedure read with Rules 24 & 25 of the Kerala Civil Procedure (Mediation) Rules 2008.

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The appellants 2 to 5 have agreed to settle the disputes by payment of a sum of Rs.25,00,000/-(Rupees Twenty Five Lakhs only) to respondents 3, 4, 5 and 6. Out of Rs.25 lakhs, Rs.12 lakhs is agreed to be paid by appellants to

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RFA.No.372 OF 2003 5

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respondents 3, 4, 5, and 6 within one month in equal proportions. On payment of Rs.12 lakhs by the appellants 2 to 4 to respondents 3, 4, 5 and 6 in equal proportion, latter will co-operate to withdraw the attachment order passed in O.S No.79/1997 of Sub Court, Cherthala and other objectionable orders and entries in revenue records. They will also co-operate for the mutation of the building in the concerned Village Office and local authority office in the joint names of appellants 2 to 5 and pay tax for the property and building in the joint names of the appellants 2 to 5. The respondents 3, 4, 5 and 6 shall not interfere with the use of the subject property and building by appellants 2 to 5 by effecting mortgage or sale agreement for raising the money for payment of balace amount of Rs.13 lakhs by the appellants to respondents 3, 4, 5 and 6. Remaining amount of Rs.13 lakhs shall be paid by appellants to respondents 3, 4, 5 and 6 within a further period of 2 months. It has also been agreed that on failure to pay the amounts by the appellants to respondents within three

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RFA.No.372 OF 2003 6

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months, respondents 3 to 6 are at liberty to execute the decree with a charge for the quantum of amount received by the respondents from appellants 2 to 5 as per Settlement Agreement with interest as applicable to fixed deposit till the date of repayment in full.

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On receipt of Rs.25 lakhs in full, respondents 3 to 6 will be free to withdraw the total amount of Rs.3,63,000/(Rupees Three Lakhs Sixty Three Thousand only) deposited by the 1^st respondent. In case the decree is executed by respondents 3 to 6 or anyone under them, appellants 3 to 6 will be at liberty to get the amount in O.S No.79/1997 of Sub Court, Cherthala released by the 1^st respondent. The Memorandum of Agreement is seen signed by the parties to the appeal as well as the respective counsel.

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In the above circumstances, the appeal is allowed and a decree is passed in terms settled by the parties and incorporated in the Memorandum of Agreement executed by them. The judgment and decree under challenge is set aside.

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RFA.No.372 OF 2003 7

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The Memorandum of Agreement shall form part of the decree. In view of the settlement arrived at, the appellant is entitled to get the court fee, refunded.

Sd/-

MARY JOSEPH

JJ/

JUDGE

//TRUE COPY// Sd/PA TO JUDGE

H.W.Wilson v. C.G Viswanatha Prabhu

Case brief

What is this about?

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H.W.Wilson v. C.G Viswanatha Prabhu

Case brief

What is this about?

What did the court decide?

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