Karnataka High Court
Sri B K Kumar vs Smt Sowbhagyamma on 4 January, 2021
Author: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.3800 OF 2020 (CPC)
BETWEEN:
1. SRI. B.K. KUMAR
S/O. LATE SHIVANNA
AGED ABOUT 72 YEARS
2. SRI. R. BASAVARAJU
S/O. LATE SHIVANNA
AGED ABOUT 68 YEARS
BOTH ARE R/AT "VAISISITHA"
5TH MAIN ROAD, ASHOKA NAGAR
TUMAKURU TOWN
... APPELLANTS
[BY SRI. NARASIMHARAJU, ADVOCATE
[PHYSICAL HEARING]
AND:
1. SMT. SOWBHAGYAMMA
W/O. LATE K.M. HANUMANTHARAYAPPA
AGED ABOUT 66 YEARS
2. SRI. CHANDRA KUMAR @ KUMARA
S/O. LATE K.M. HANUMANTHARAYAPPA
AGED ABOUT 52 YEARS
2
3. SRI. VENUGOPALA KRISHNASWAMY
S/O. LATE K.M. HANUMANTHARAYAPPA
AGED ABOUT 49 YEARS
4. SMT. LATHA KUMARI
W/O. LATE VENKATESHA
AGED ABOUT 44 YEARS
5. SRI. YATHISHA
S/O. LATE VENKATESHA
AGED ABOUT 21 YEARS
6. SRI. RAGHAVENDRA
S/O. LATE VENKATESHA
AGED ABOUT 18 YEARS
RESPONDENT NO.6 IS MINOR
REP. BY HIS NATURAL GUARDIAN
MOTHER RESPONDENT NO.4
SMT. LATHA KUMARI
7. SRI. SUDHARSHAN
S/O. LATE K.M. HANUMANTHARAYAPPA
AGED ABOUT 42 YEARS
ALL ARE RESIDENTS OF
PETE BEEDI, KYATHSANDRA,
TUMAKURU TALUK.
8. SRI. SUJNANA MURTHY
S/O. SHANTHAIAH
AGED ABOUT 57 YEARS
RESIDENT OF KANNUR VILLAGE
KADUR HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT
9. SRI. MRUTHYUNJAYA SWAMY
S/O. SHANTHAIAH
3
AGED ABOUT 53 YEARS
RESIDENT OF KANNUR VILLAGE
KADUR HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT
10. SRI. NAGARAJU
S/O. LATE K.M. HANUMANTHARAYAPPA
AGED ABOUT 44 YEARS
RESIDENT OF PETE BEEDI
KYATHSANDRA
TUMAKURU TALUK
11. SRI. K. KANTHARAJU
S/O. LATE KALAPPA
AGED ABOUT 59 YEARS
RESIDENT OF SANTHE BEEDI ROAD
KYATHSANDRA
TUMAKURU TALUK
12. SMT. KAVYA
W/O. LATE LAKSHMINARAYANA K.N.
AGED ABOUT 40 YEARS
13. SRI. NANDAN
S/O. LATE LAKSHMINARAYANA K.N.
AGED ABOUT 38 YEARS
14. SRI. SHASHANK
S/O. LATE LAKSHMINARAYANA K.N.
AGED ABOUT 18 YEARS
15. KUM. SINDHUSHREE
D/O. LATE LAKSHMINARAYANA K.N.
AGED ABOUT 16 YEARS
RESPONDENT NO.15 IS MINOR
REP BY THEIR NATURAL GUARDIAN
MOTHER RESPONDENT NO.12
SMT. KAVYA
4
16. SMT. KRISHNA KUMARI
W/O. GANESH
AGED ABOUT 56 YEARS
RESIDENT OF POLICE QUARTERS
TUMAKURU.
17. SMT. JAYANTHI I.
W/O. LATE NAGESH,
AGED ABOUT 48 YEARS,
RESPONDENT NO.9 TO 13 AND 15 AND 17
ARE RESIDING AT YALLAREBANDE,
MYDALA ROAD, KYATHSANDRA,
TUMAKURU TALUK.
18. SMT. RATHNAMMA
W/O. LATE K.K. MURTHY
AGED ABOUT 44 YEARS
RESIDING AT SANTHE BEEDI
KYATHASANDRA
TUMAKURU TALUK
19. SMT. USHA RANI
W/O SRINIVASA
AGED ABOUT 39 YEARS
RESIDENT OF BEHIND GANGAMMA TEMPLE
NEAR BUS STAND, YELAHANKA
BENGALURU
20. SMT. MANGALAGOWRI
D/O. K.K.MURTHY
AGED ABOUT 35 YEARS
RESIDENT OF SANTHE BEEDI
KYATHASANDRA
TUMAKURU TALUK
21. SMT. ANUSHREE @ TRIVENI
S/O. Y.R. MURTHY
5
AGED ABOUT 34 YEARS
RESIDENT OF YALEYUR
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT
22. SMT. CHINNAMMA
W/O. LATE GANGADHAR
AGED ABOUT 64 YEARS
RESIDENT OF KACHERI PALYA
MESTRI DODDANNA VATARA
DODDABALLAPURA
BENGALURU RURAL DISTRICT
23. SMT. RAMADEVI
W/O. LATE RAMACHANDRAPPA
AGED ABOUT 56 YEARS
RESIDENT OF INDIRA NAGAR
KYATHASANDRA
TUMAKURU TOWN
24. SMT. CHOODAMANI
W/O. LATE CHELUVARAJU
AGED ABOUT 51 YEARS
RESIDENT OF MARUTHI NAGAR
KYATHASANDRA
TUMAKURU TOWN.
... RESPONDENTS
[BY SRI H.P. LEELADHAR, ADVOCATE FOR R1 AND R2]
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER
DATED 31.07.2020 PASSED IN R.A.NO.117/2016 ON THE
FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, TUMKUR, DISMISSING THE APPLICATION FILED
UNDER ORDER 39 RULES 1 AND 2 OF CPC
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
6
JUDGMENT
This is an appeal filed by respondent Nos.16 and 17
in R.A. No.117/2016 challenging the order dated
31.07.2020 by which their application for interim
injunction was rejected by the III Additional District and
Sessions Judge, Tumkur.
2. The facts which can be gathered from the
pleadings on record are that the present appellants had
entered into an agreement with respondent Nos.1 to 7
herein on 6.10.2003, agreeing to purchase the suit
property at the rate of Rs.16,666/- per gunta. Since
respondent Nos.1 to 7 had failed to comply their part of
agreement, the appellants herein filed O.S. No.229/2012
for specific performance of the said agreement, which
ultimately came to be partly decreed in terms of the
judgment and decree dated 22.8.2019 by which the
earnest money paid by the appellants herein was ordered
to be refunded. Feeling aggrieved by the aforesaid
judgment and decree, the appellants herein filed RFA
No.2155/2019 which is pending consideration before this
Court. In the meanwhile, the respondent Nos.10 to 24
filed O.S No.260/2007 for partition and separate
possession of their share against respondent Nos.1 to 7
herein and the said suit was decreed, against which
respondent Nos.1 to 7 had filed R.A. No.117/2016. The
appellants contended that during the pendency of the
proceedings before this Court, in RFA 2155/2019,
respondent Nos.1 to 7 again executed another agreement
of sale on 23.6.2020 in favour of respondent Nos.8 and 9
in this appeal. Hence, the appellants herein filed an
application under Order XXXIX Rule 1 and 2 of CPC in R.A.
No.117/2016 praying the Court below to pass an order of
temporary injunction restraining respondent Nos.1 to 7
from alienating the suit property to respondent Nos.8 and
9 herein. The said application was rejected in terms of the
order dated 31.7.2020, which is challenged in this appeal.
3. It is relevant to note that the impugned order
was passed on an application filed by the appellants
herein, who are the holders of agreement, claiming right in
respect of the suit property in terms of the agreement of
sale dated 6.10.2003. They were not necessary parties in
the suit for partition. Their remedy is only to seek for
apportionment in final decree proceedings, if they succeed
in obtaining a sale deed from respondents 1 to 7.
4. Be that as it may, since the appellants herein
have failed in their attempt to obtain a decree for specific
performance in O.S. No.229/2012, which is now pending
before this Court in RFA No.2155/2019, it is appropriate
for the appellants herein to seek necessary reliefs in RFA
No.2155/2019 and not by invoking the process of Court in
R.A. No.117/2016.
5. In that view of the matter the impugned order
passed by the Court below does not call for interference by
this Court. However, liberty is reserved to the appellants
herein to seek necessary reliefs in RFA No.2155/2019
which is pending before this Court.
Subject to the above observation, the appeal is
disposed of.
In view of disposal of the appeal, the pending
applications also stand disposed of.
Sd/-
JUDGE
Cs
