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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
M.F.A.NO.101133/2021
BETWEEN
1. SMT. MEHARUNNISA W/O SAYYED UMAR
AGE 72 YEARS, OCC. HOUSEHOLD
R/O. ASHURKHAN GALLI, TQ. HONNAVAR
DIST: UTTARA KANNADA 581334.
2. JAMAL AJAD S/O SAYYED UMAR
AGE 55 YEARS, OCC. BUSINESS
R/O. ASHURKHAN GALLI, TQ. HONNAVAR
DIST: UTTARA KANNADA 581334.
3. SMT. BATTUL W/O AJIS KHAN
AGE 52 YEARS, OCC. HOUSEHOLD
R/O. SARALAGI, NEAR URDU SCHOOL
TQ: HONNAVAR, DIST: UTTARA KANNADA 581334.
4. SMT. RAMIZA W/O SHAFI SHAIKH
AGE 50 YEARS, OCC. HOUSEHOLD
R/O. HONMAVU, TQ. KUMTA
DIST: UTTARA KANNADA 581332.
5. SMT. NOORJAHAN W/O ABDUL RAHOOF MANIYAR
AGE ABOUT 45 YEARS, OCC. HOUSEHOLD
R/O. NOORANI MOHALLA, PO:CHANDAVARA,
TQ: HONNAVAR, DIST: UTTARA KANNADA 581334.
6. SMT. VAHIDA W/O ASLAM KHAN
AGE 43 YEARS, OCC. HOUSEHOLD
R/O. SARALAGI, NEAR MASZID,
TQ: HONNAVAR, DIST: UTTARA KANNADA 581334.
7. SMT. SHAHIDA W/O JABBAR SHAIKH
AGE 40 YEARS, OCC. HOUSEHOLD
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R/O. ASHURKHAN GALLI, TQ: HONNAVAR,
DIST: UTTARA KANNADA 581334.
8. SMT. JABEEN W/O MUBEEN SHAIKH
AGE 31 YEARS, OCC. HOUSEHOLD
R/O. KODI, NEAR MASZID,
TQ: KUNDAPURA, DIST: UDUPI-576201.
9. SMT. SAPURABHI W/O SAYED KARIM
AGE ABOUT 67 YEARS, OCC. HOUSEHOLD
R/O. ASHURKHAN GALLI, TQ: HONNAVAR
DIST: UTTARA KANNADA 581334.
...APPELLANTS
(BY SRI.NARAYAN.V.YAJI, ADVOCATE)
AND
1. SMT. SHAHAJADI W/O SAYED HANIFSHA
AGE ABOUT 65 YEARS, OCC. HOUSEHOLD
R/O. BUNDER ROAD, TQ. HONNAVAR
DIST. UTTARA KANNADA 581334.
2. SAYED HAMEED S/O SAYED HANIFSHA
AGE ABOUT 43 YEARS, OCC. SERVICE
R/O. BUNDER ROAD, TQ. HONNAVAR
DIST. UTTARA KANNADA 581334.
3. SAYED MAMTAZA ALI S/O SAYED HANIFSHA
AGE ABOUT 48 YEARS, OCC. SERVICE
R/O. BUNDER ROAD, TQ. HONNAVAR
DIST. UTTARA KANNADA 581334.
4. SMT. SAHIRA W/O DAWOOD SHAIKH
AGE ABOUT 44 YEARS, OCC. HOUSEHOLD
R/O. HALDIPUR, TQ. HONNAVAR
DIST. UTTARA KANNADA 581334.
5. SMT.SHABANA SHAIKH MUKTIYAR
AGE ABOUT 41 YEARS, OCC. HOUSEHOLD
R/O. HALKAR, TQ. ANKOLA
DIST. UTTARA KANNADA 581334.
6. SAYED MARTHUZA S/O SAYED FAKIR
AGE ABOUT 69 YEARS, OCC:RETIRED DRIVER
R/O. KHAJIMANGIL, BANDEHALLI, TQ. HONNAVAR
DIST. UTTARA KANNADA 581334.
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7. SAYED MUTALEEF S/O SAYED FAKIR
AGE ABOUT 65 YEARS, OCC. DRIVER
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
8. SMT. ZARINA W/O SAYED HAROON
AGE ABOUT 55 YEARS, OCC. HOUSEHOLD
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
9. SMT. SHAMIMA W/O SAYED HAROON
AGE ABOUT 60 YEARS, OCC. HOUSEHOLD
R/O. TARSI, TQ. KUNDAPUR
DIST. UTTARA KANNADA 581332.
10. KUMARI. NAJABU SAIRA D/O SAYED HAROON
AGE ABOUT 19 YEARS, OCC. STUDENT
R/O. TARSI, TQ. KUNDAPUR
DIST. UTTARA KANNADA 581332.
11. SAYED FAHAD S/O SAYED HAROON
AGE ABOUT 30 YEARS, OCC. BUSINESS
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
12. SAYED FAISAL S/O SAYED HAROON
AGE ABOUT 25 YEARS, OCC. BUSINESS
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
13. SMT. LUBANA SAYED D/O SAYED HAROON
AGE ABOUT 24 YEARS, OCC. STUDENT
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
14. SAMI SAYED S/O SAYED HAROON
AGE ABOUT 19 YEARS, OCC. STUDENT
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
15. SAYED MOOSA S/O SAYED FAKIR
AGE ABOUT 57 YEARS, OCC. ENGINEER
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
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16. SAYED ZAFAR SADIKA S/O SAYED FAKIR
AGE ABOUT 53 YEARS, OCC. SERVICE
R/O. RNS QUARTERS NO.13, VI CROSS
KODANGE, B.C.ROAD, (D.K)
DIST. UTTARA KANNADA.
17. SMT.BEGAM SHA SHAIKH MOOSA
AGE ABOUT 70 YEARS, OCC. STUDENT
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
18. SMT.FATIMA SHA W/O SAYED KASHIM
AGE ABOUT 65 YEARS, OCC. HOUSEHOLD
R/O. RAMATEERTH, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
19. SMT.AMINABI ABDUL RASUL
AGE ABOUT 51 YEARS, OCC. HOUSEHOLD
R/O. ASHURKHAN GALLI, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
20. SAYED HASAN S/O SAYED HANIFSHA
AGE ABOUT 33 YEARS, OCC. SERVICE
R/O. BUNDAR ROAD, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
21. ASPAK S/O SAYED HANIFSHA
AGE ABOUT 33 YEARS, OCC. SERVICE
R/O. BUNDAR ROAD, TQ. HONNAVAR,
DIST. UTTARA KANNADA 581334.
.....RESPONDENTS
(BY SRI.RAGHAVENDRA.A.PUROHIT, ADV FOR R1 TO 7
AND 15 TO 21;
SERVICE OF NOTICE TO R8, 9, 10, 13 & 14- SERVED;
SERVICE OF NOTICE TO R11 & 12-HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O XLIII
RULE 1 (A) OF THE CIVIL PROCEDURE CODE, PRAYING TO SET
ASIDE THE ORDER PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HONNAVAR
DATED 02.09.2021 ON IA NO. 5 IN OS NO. 8/2016 AS IT IS
ILLEGAL.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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: JUDGMENT :
Heard learned counsel Sri.Narayan.V.Yaji, for the appellants and Sri.Raghavendra.A.Purohit, for the respondent Nos.1 to 7 and 15 to 21 on merits.
2. Appellants are challenging the order dated 02.09.2021 passed in O.S.No.08/2016 by the learned Senior Civil Judge and JMFC., Honnavar (hereinafter referred as 'the trial Court') appointing defendant No.12 as receiver to collect the rent/income from the schedule properties and to deposit the same before the Court, till disposal of the suit.
3. Brief facts of the case are that respondent Nos.1 to 5 for plaintiffs filed O.S.No.8/2016, before the Senior Civil Judge Court at Honnavara, against the appellants, who are the legal representatives of the deceased defendant No.1 and against respondent Nos.6 to 21, who are defendant Nos.3 to 20, seeking declaration that the plaintiffs and defendant Nos.19 and 20 together entitled to 2/19th share in the suit -6- schedule properties and for partition and separate possession of the same by metes and bounds, directing defendant Nos.1, 2, 12, 17 and 18 to render accounts of the firm by name M/s Hotel Good Luck and to appoint the commissioner for taking the accounts of the firm and also for mesne profits from the date of suit till handing over the possession of the property. It is stated that the schedule properties include the rent generating properties, which are in occupation of various tenants and also a Hotel and Lodging by name M/s Hotel Good Luck, which is also generating income. The plaintiff after filing the suit filed I.A.No.5, praying for appointment of a receiver to collect the rents and profits generated from the schedule properties and to deposit the same before the Court till disposal of the suit. The said application was came to be allowed vide order dated 02.09.2021, which is called in question in this appeal by the legal representatives of deceased defendant No.1.
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4. Heard learned counsel Sri.Narayan.V.Yaji, for the appellants and Sri.Raghavendra.A.Purohit, for the respondent Nos.1 to 7 and 15 to 21.
5. Perused the material on record.
6. The point that would arise for my consideration is as follows:
"Whether the impugned order dated 02.09.2021 on I.A.No.V passed in O.S.No.08/2016 on the file of learned Senior Civil Judge and JMFC Court at Honnavar, against the appellants, is liable to set aside?
7. My answer to the above point is in the 'Negative' for the following:
: REASONS :
8. Respondent Nos.1 to 5 are the plaintiffs filed the suit for declaration that they are entitled for a share in the schedule properties and for partition and separate possession of the same. They also claimed -8- accounts of the firm by name M/s Good Luck and filed I.A.No.V under Order XL Rule 1 of Civil Procedure Code. Considering the contention of the parties, the trial Court appointed defendant No.12, as the receiver to collect the rent and directed him to deposit the same before the trial Court. It is stated that defendant No.12 is also a family member and he is the member of the firm in question. It is not the contention of the parties that defendant No.12 is misappropriating the amount that is being generated as rent/profit from various properties. However, he is accountable for the income generated from the schedule properties. From the contentions taken by both the learned counsels, I could not make out any serious objection for defendant No.12 being the receiver, to collect the income/rent/profits in his capacity as one of the partners of the firm and to deposit the same before the court, which will be subject to the final result of the suit. When the entitlement of the plaintiffs for share and accounts are to be decided by the trial -9- Court, the income generated from the properties are to be collected, deposited and accounted for. Therefore, I am of the opinion that the impugned order passed by the trial Court is not required to be interfered with. Defendant No.12, who is appointed as receiver under the impugned order is directed to collect the rent/profit/income from the schedule properties and to deposit the same before the Court regularly. It is made clear that defendant No.12 is accountable to the proceeds collected by him. The amount so deposited before the trial Court is subject to the final result of the suit.
9. In view of the above, the appeal is disposed of. Hence, I answered the above point in the negative and proceeded to pass the following:
ORDER The appeal is disposed off.
The trial Court is directed to dispose of the suit expeditiously. It is needless to say that all the parties
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should cooperate with the trial Court in such expeditious disposal of the suit.
Sd/-
JUDGE AM/-