Karnataka High Court
Sri C Krishnappa vs Sri Subramani on 7 January, 2021
Author: S R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.NO.7133 OF 2013(CPC)
BETWEEN
SRI C KRISHNAPPA
S/O LATE CHIKKAMUNIYAPPA,
AGED ABOUT 63 YEARS,
RESIDING AT OLD NO.784,
NEW NO.788, H.A.FARM,
NEAR MARIYAMMA TEMPLE,
NEAR RAILWAY GATE,HEBBAL,
BANGALORE-560 024. ...APPELLANT
(BY SRI.YESHU MISHRA , ADVOCATE)
AND
1. SRI SUBRAMANI
S/O LATE CHIKKAMUNIYAPPA
DIED ON 27.01.2015
REPRESENTED BY LRS.
1(A) SMT. VASANTHA
W/O LATE SUBRAMANI
AGED 50 YEARS.
1(B) SRI. GAGAN
S/O LATE. SUBRAMANI
AGED 21 YEARS.
1(C) KUMARI POOJA
D/O LATE SUBRAMANI
16 YEARS, REPRESENTED BY NATURAL
GUARDIAN SMT. VASANTHA 1(A)
2
R-1(A) TO 1(C) R/AT NEW NO.788, H.A.FARM,
NEAR MARIYAMMA TEMPLE
NEAR RAILWAY GATE, HEBBAL,
BANGALORE
2. SMT.PUTTAMMA
W/O LATE CHIKKAMUNIYAPPA,
AGED ABOUT 74 YEARS,
3. SRI. C.SRINIVASA
S/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 44 YEARS,
4. SRI C.RAMESH
S/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 40 YEARS,
RESPONDENTS NO.2 TO 4 ARE
RESIDING AT OLD NO.784,
NEW NO.788, H.A.FARM,
NEAR MARIYAMMA TEMPLE,
NEAR RAILWAY GATE,HEBBAL,
BANGALORE-560 024.
5. SMT.YASHODAMMA
D/O LATE CHIKKAMUNIYAPPA,
W/O CHIKKABYAPPA,
AGED ABOUT 60 YEARS,
R/AT NEELASANDRA, ANEPALYA,
(GANGADHARANAGAR) MAIN ROAD,
NEAR GANESHA TEMPLE, BANGALORE - 560 064.
6. SMT.VIJAYAMMA
D/O LATE CHIKKAMUNIYAPPA,
W/O RAJANNA,
AGED ABOUT 50 YEARS,
SRI GANESHA HOME MEALS SUPPLIERS,
NORTH INDIAN AND SOUTH INDIAN,
NO.16, 23RD MAIN, 2ND CROSS,
J.P.NAGAR, 2ND PHASE, BANGALORE-560 078.
7. SMT.KANTHAMMA
D/O LATE CHIKKAMUNIYAPPA,
W/O M.SHANKAR,
AGED ABOUT 38 YEARS,
3
R/AT NO.1, R.K.MUTT,
NEAR SHANIMAHATHMA SWAMY TEMPLE,
GAVIPURAM GUTTAHALLI, CHAMARAJAPET,
BANGALORE-560 018.
...RESPONDENTS
(R1( A TO C) ,R-2, R-3, R-4, R-7 - SERVED
V/O/DT: 10.06.2015- NOTICE TO R-5 & R-6 D/W)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF CPC,
AGAINST THE ORDER DT: 16.08.2013 PASSED ON I.A.NO. 12 IN
OS.NO. 5051/2008 ON THE FILE OF THE XXXVIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, ALLOWING I.A.NO.12
FILED U/O 39 RULE 2A R/W SEC. 151 OF CPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned order
dated 16.08.2013 passed in O.S.No.5051/2008 by the XXXVIII
Addl.City Civil and Sessions Judge, Bangalore, whereby the
trial court allowed I.A.No.12 filed by respondent No.1 under
Order 39 Rule 2-A r/w Section 151 CPC and directed
appellant to be detained in civil prison for a period of one
month.
2. Heard the learned counsel for appellant. The
respondent having been served with the notice of this appeal,
has remained unrepresented and not contested the matter.
3. The material on record indicates that in
O.S.No.5051/2008 filed by respondent No.1-plaintiff before the
trial court, the appellant was arrayed as defendant No.2 and
he contested the suit. Pursuant to an application I.A.11 filed
by respondent No.1 under Section 151 CPC, by order dated
12.02.2013, the trial court allowed the said application and
directed the appellant to supply electricity connection to the
premises of respondent No.1. Subsequently, respondent No.1
filed the instant application I.A.12 dated 20.04.2013
contending that the appellant had violated the said order dated
12.02.2013. Though, the appellant contested the said
application, the trial court proceeded to allow the said
application by the impugned order dated 16.08.2013.
4. The material on record also indicates that during the
pendency of I.A.12, the appellant had filed one more
application I.A.18 seeking modification of the earlier order
dated 02.02.2013 passed on I.A.11 as stated supra. By order
dated 16.12.2013, the said I.A.18 filed by the appellant was
allowed by the trial court permitting the appellant and
defendant No.1 to transfer / shift the electricity meter in
occupation of the plaintiff at the cost of defendants 1 and 2. It
is seen that the said order dated 16.12.2013 was complied
with by the appellant as well as defendant No.1.
5. The aforesaid facts and circumstances clearly
indicate that in the light of the subsequent order dated
16.12.2013 passed by the trial court allowing I.A.No.18 filed by
the appellant herein and modifying the earlier order on
I.A.No.11 dated 12.02.2013, the impugned order passed by
the trial court allowing I.A.No.12 on the ground of alleged
willful disobedience / contempt committed by the appellant of
the order at I.A.No.11 deserves to be set aside since the
alleged willful contempt / willful disobedience has been purged
by virtue of the subsequent order on I.A.No.18 dated
16.12.2013. Consequently, the impugned order passed by the
trial court deserves to be set aside on this short ground alone.
6. It is also relevant to state that a perusal of the order
on I.A.No.11 will indicate that the said application had been
filed by respondent No.1 - plaintiff under Section 151 CPC and
not under Order 39 Rules 1 and 2 CPC. It is needless to state
that in order to attract Order 39 Rule 2-A CPC for alleged
willful disobedience/contempt, it is necessary that I.A.No.11
should have been filed under Order 39 Rules 1 and 2 CPC; In
other words, an application under Order 39 Rule 2-A CPC
seeking to enforce an order passed under Section 151 CPC
cannot be said to be maintainable and the impugned order
deserves to be quashed on this ground also.
7. In the result, I pass the following:-
ORDER
(i) Appeal is allowed.
(ii) The impugned order dated 16.08.2013 passed on
I.A.No.12 is hereby set aside.
Sd/-
JUDGE
Srl/Mds.
