JUMAILATH, D/O. KUNHIMOOSA v. FAISAL, S/O. KUNHIMARAKKAR
2024-10-21
A.BADHARUDEEN
body2024
DigiLaw.ai
ORDER : (A. BADHARUDEEN, J.) The petitioners in CMP.No.4488/2024 in M.C.No.100/2022 on the files of Judicial First Class Magistrate Court-I, Tirur assail order dated 05.10.2024 in the above CMP (Annexure-A4) whereby the learned Magistrate dismissed the CMP filed by the petitioners to lift the interim order of injunction passed in CMP 1558/2022 dated 15.02.2022 (Annexure-A1). Though the petition seems to be filed by referring Order 38 Rule 9 of the Code of Civil Procedure, 1908 (for short 'the CPC') in a criminal proceedings, the prayer in fact is to lift Annexure-A1 interim order and to communicate the same to the Sub Registrar Office concerned. 2. According to the learned counsel for the petitioners, M.C.100/2022 in between the petitioners and the respondents was settled in mediation and accordingly it was agreed to share half right over the property in between the 1st petitioner and 1st respondent. In view of settlement the MC was dismissed as not pressed, but lifting of Annexure-A1 not communicated to the SRO concerned. Now, execution of the document in terms of the settlement could not be materialised because of Annexure-A1 interim order recorded in the records of the Sub Registrar's Office and therefore, the petitioners filed the present petition. 3. According to the learned counsel for the petitioners, dismissal of the said petition by the learned Magistrate as per Annexure-A4 stating that “MC already dismissed as not pressed. Hence petition not maintainable.” is illegal and the same is against the interest of the petitioners and also the same would stand in the way of enforcing the compromise reached between the parties. 4. On perusal of Annexure-A1 order the same is as under: “1) The respondents are restrained from committing any act of physical and mental harassment to the petitioners until further orders. 2) First respondent is restrained from alienating or encumbering his half share in the petition scheduled property covered by document No.1648/2020 of SRO Kodakkal until further orders. Intimate SRO. 3) The Station House Officer Tirur, is directed to give all assistance to the petitioners to execute this order, as and when required.” 5. Anyhow as per the recitals in Annexure-A4, the said MC was dismissed as not pressed. It is shocking to note that when an interim order is passed in a main proceedings (either criminal or civil), on dismissal of the main proceedings, the interim order also would come to an end.
Anyhow as per the recitals in Annexure-A4, the said MC was dismissed as not pressed. It is shocking to note that when an interim order is passed in a main proceedings (either criminal or civil), on dismissal of the main proceedings, the interim order also would come to an end. But formally the interim applications also would be dismissed. When there was failure to communicate the same to the SRO or the respective officers concerned, the interim order communicated earlier would continue in the records of the officers concerned. Therefore, the Sub Registrars or the officers concerned would go by the order, without knowing the dismissal of the main proceedings and vacation of the interim order communicated earlier. This may happen in civil cases also with regard to interim orders passed prohibiting alienation of property by interim injunction or by attachment of property. Therefore, while dismissing the MCs or cases/suits the interim orders also to be specifically vacated and to be intimated to the SRO or to the officer concerned, to note the same in the records of the Registry or other records to deal with the property freely. 6. Keeping the legal position as discussed, there is no justification for the learned Magistrate to dismiss the petition filed seeking the said relief on the ground that MC was not pressed and dismissed. Therefore, the present petition would have been allowed to communicate the lifting or vacation of the interim order to the SRO concerned. Hence it is held that that Annexure-A4 order is illegal and unsustainable. Therefore the same is set aside. Accordingly, this petition stands allowed by setting aside Annexure-A4 order and allowing Annexure-A3 petition with direction to the learned Magistrate to issue letter of communication to the SRO concerned regarding vacation of interim order No.2 passed in Annexure-A1 within a period of three days from the date of production of this order, without fail, and report compliance thereof.
Accordingly, this petition stands allowed by setting aside Annexure-A4 order and allowing Annexure-A3 petition with direction to the learned Magistrate to issue letter of communication to the SRO concerned regarding vacation of interim order No.2 passed in Annexure-A1 within a period of three days from the date of production of this order, without fail, and report compliance thereof. Since it is noticed that the litigants have been facing difficulties arose out of similar situations, Registry is directed to forward a copy of this order to all courts in the District Judiciary with a direction to lift or vacate the interim orders and to dismiss the interim petitions while dismissing the main matter and to inform the same to the officers concerned forthwith where the interim orders have been communicated, including the Sub Registrar's Office, Village Office etc., hereafter, without fail.