Master N Harikrishna vs Smt Parvathamma
2022 Latest Caselaw 6044 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04 T H DAY OF APRIL, 2022

                            BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

            MFA NO.5588 OF 2018 (CPC)

BETWEEN:

1 . Master N. Harikrishna
    s/o late J P Narayanaswamy,
    Aged about 13 years,

2 . Kumari N. Hiranmayi
    D/o Late J P Narayanaswamy
    Aged about 6 years,

   Appellant No.1 and 2 are minors
   Represented by their mother and
   Natural guardian/next friend,
   Smt. H P Shobha,
   W/o Late J P Narayanaswamy,
   Aged about 38 years,

   Both are R/at No.11,
   Achaiah Shetty layout,
   Municipal ward No.99,
   Aramane Nagar,
   Bangalore-560 080
                                           ..Appellants
(By Sri B M Halaswamy, Advocate)

AND:

1 . Smt. Parvathamma
    W/o Late J P Narayanaswamy,
    Aged about 59 years,
    R/at No.350, 4th main,
                              :: 2 ::


   Upper palace orchards,
   Sadashivanagar,
   Bangalore-560080.

2 . Sri J P Sudhakar
    S/o Sri Puttaswamaiah,
    Aged about 44 years,
    R/at No.12/6, 9th main road,
    Sadashivanagar,
    Bangalore-560080.

3 . Kumari J P Devika
    Aged about 18 years,
    Foster daughter of
    Late J P Narayanaswamy,
    R/at no.350, 4th main,
    Upper palace orchards,
    Sadashivanagar,
    Bangalore-560080.

4 . B S Vinod kumar
    S/o Late B M Somashekar,
    Aged about 40 years,
    R/o No.116, Byrathi village,
    Kothnur post,
    Bangalore-560077.
                                                ....Respondents
(By Smt. B.M. Rakshitha, Advocate for C/R2)

      This MFA is filed under Ord er 43 Rule 1(r) of CPC
against    the   order    dated    12.06.2018    passed   on
I.A.No.2 in O.S.No.1127/2018 on the file of the XIX
Additional City Civil and Sessions Judge, Beng aluru
(CCH-18) dismissing I.A.No.2 filed und er Order XXXIX
Rules 1 and 2 of CPC.

      This MFA coming on for admission this d ay, the
Court delivered the following:
                                 :: 3 ::


                             JUDGMENT

Heard Sri B.M.Halaswamy, learned counsel for

the appellants and Smt. B.M.Rakshitha, learned

counsel for the caveator/respondent No.2.

2. It is submitted by the counsel for

respondent No.2 that respondent No.1 is dead and

respondents 2 and 3 are the legal representatives

of deceased respondent No.1.

3. The appellants are the plaintiffs in

O.S.No.1127/2018, which is a suit for partition.

In the suit, the plaintiffs filed an application as per

IA No.2 under Order XXXIX Rules 1 and 2 CPC to

restrain the defendants 1 to 3 and 24 from

alienating, encumbering or creating any charge

over the suit properties. Since the said

application was dismissed, the appellants are

before this Court in this appeal.

4. It is submitted by the counsel for

respondent No.2 that the Hon'ble Supreme Court :: 4 ::

in Civil Appeal Nos.5982-5985 of 2019, passed an

order appointing a former judge of this Court, Sri

Justice N.Kumar, for overseeing the decisions of

the executors named in the Will and the Hon'ble

Supreme Court also gave a direction that no

alienation or third party interest shall be created

without the permission of Sri Justice N.Kumar.

She submits that since some of the properties

involved in the partition suit are also involved in

the probate proceedings, this appeal be disposed

of in terms of the order of the Hon'ble Supreme

Court in Civil Appeal Nos.5982-5985 of 2019.

5. Sri B.M.Halaswamy, counsel for the

appellants submits that this appeal can also be

disposed of in accordance with the order of the

Hon'ble Supreme Court.

6. It is found that some of the properties

involved in the partition suit, i.e.,

O.S.No.1127/2018 are also involved in the other :: 5 ::

suit, namely, O.S.No.1403/2018 in relation to

probate. The Hon'ble Supreme Court has directed

expeditious disposal of the suits

O.S.No.1127/2018 and O.S.No.1403/2018. That

means the direction given by the Supreme Court to

seek the permission of Justice N.Kumar, in case

alienation is to be effected by the executor,

equally applies in respect of properties comprised

in O.S.No.1127/2018. Even if the properties are

alienated, since the appellants' suit is for

partition, any alienation during pendency of the

suit is subject to final result in the suit. In this

view, I do not think that the apprehension

expressed by the appellants that the properties

will be alienated or disposed of by the defendants,

is worth consideration. The executors named in

the Will have to take permission of Sri Justice

N.Kumar for effecting any alienation. Therefore

this appeal does not survive. It stands disposed

of in terms of the order passed by the Hon'ble :: 6 ::

Supreme Court in Civil Appeal Nos.5982-5985 of

2019.

IA No.1/2018 does not survive for

consideration. It stands disposed of accordingly.

Sd/-

JUDGE

Kmv/-