Karnataka High Court
Sri H Narayanaswamy vs Sri Late H Laxmanappa on 12 January, 2022
Bench: Ashok S.Kinagi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI
WRIT PETITION NO. 15971 OF 2021 (GM-CPC)
BETWEEN:
SRI. H. NARAYANASWAMY
S/O. LATE H.BASVANYAPPA,
AGED ABOUT 72 YEARS
NO.147/A, ESTEEM CLASSIC APARTMENTS,
F.B.202, INDUSTRIAL SUBURB,
1ST STAGE, RAJAJINAGAR,
BANGALORE - 560 022.
(SENIOR CITIZEN BENEFITS NOT CLAIMED)
...PETITIONER
(BY SRI. M.S.BHAGWAT, SR. ADV. FOR SRI. SATISH K., ADV.)
AND:
1. SRI. LATE H.LAXMANAPPA,
REPRESENTED BY HIS LEGAL HEIR,
1(a) SMT. P.R.PREMALATHA,
W/O. H.LAXMANAPPA,
AGED ABOUT 70 YEARS,
NO.111, 4TH BLOCK, 4TH STAGE,
8TH MAIN ROAD,
BASAVESHWARANAGARA,
BANGALORE - 560 079.
2. SRI. H.RAJASHEKARA
S/O. LATE H. BASAVANYAPPA,
AGED ABOUT 68 YEARS,
RETIRED DEPUTY CONSERVATOR OF
FOREST DEPT.
NO.111, 4TH BLOCK, 4TH STAGE,
2
8TH MAIN ROAD,
AGRAHARA DASARAHALLI,
BASAVESWARANAGARA
BANGALORE - 560 079.
3. SRI. SOMASHEKARA,
S/O. H. BHEEMARAYAPPA,
AGED ABOUT 60 YEARS,
SHREEDHAMA NILAYA,
GENDLA HOSURU VILLAGE,
KUPPAGADDE POST,
SORABA TALUK,
SHIVAMMOGA DISTRICT - 577 429.
... RESPONDENTS
(BY SRI. SAMPAT BAPAT., ADV. FOR R-1 & R-2;
SMT. BHAVANA G.K, ADV. FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN FDP NO.4/2018 PENDING IN FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, SORABA AND ETC.
THIS WRIT PETITION COMING ON FOR 'ORDERS' THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner being aggrieved by the order dated
08.07.2021 passed in F.D.P.No.4/2018 by the Senior Civil
Judge and JMFC, Soraba, has filed this petition.
2. Brief facts leading to filing of this writ petition
are that:
The petitioner has filed a suit in O.S.No.39/2011 on
the file of the Senior Civil Judge and JMFC, Soraba seeking
for declaration, partition and separate possession of the
suit schedule properties against the respondents. After
trial, the Trial Court decreed the suit of the petitioner vide
judgment and decree dated 14.09.2016. The respondents
being aggrieved by the judgment and decree passed by
the Trial Court in O.S.No.39/2011 preferred appeal in
R.F.A.No.153/2017 before this Court. Thereafter, the
petitioner has initiated final decree proceedings in
F.D.P.No.4/2018. The Trial Court has passed an order
stating that the respondents have filed a memo with a
copy of the order in R.F.A.Nos.153/2017 and 154/2017
and it has observed that it is not proper to pursue this final
decree proceedings, till the final order is passed in
R.F.A.Nos.153/2017 and 154/2017. The petitioner being
aggrieved by the same, has filed this Writ Petition.
3. Heard Sri. M.S.Bhagawath, learned Senior
Counsel for the petitioner and learned counsel for the
respondents.
4. Learned Senior counsel submits that this Court
in the aforesaid Regular First Appeals has directed to the
F.D.P. Court to proceed with the final decree proceedings
in item Nos.11 and 12. The Trial Court without considering
the said aspect has proceeded to pass the impugned order.
Learned Senior Counsel for the petitioner further submits
that though there was no interim order in the said appeal,
the F.D.P. Court has refused to pass the final order. He
further submits that during the pendency of the instant
writ petition, this Court vide order dated 26.10.2021
directed to draw a final decree only in respect of item
Nos.11 and 12. He further submits that though there was
no interim order earlier granted in the appeal, still the Trial
Court has refused to pass an order. He further submits
that he will confine the final decree proceedings in respect
of item Nos.11 and 12 for the time being. Hence, on these
grounds he prayed to allow the Writ Petition.
5. Per contra, learned counsel for the respondents
submits that the respondents have no objection to proceed
final decree proceedings in respect of item Nos.11 and 12
as per the order passed in the aforesaid appeal.
6. Heard and perused the records and considered
the submissions of the learned counsel for the parties.
7. It is not in dispute that the petitioner has filed
a suit for declaration, partition and separate possession.
The Trial Court, the trial, decreed the suit for drawing up a
preliminary decree. The petitioner has filed a final decree
proceedings for drawing up a final decree. The respondent
being aggrieved by the judgment and preliminary decree
passed by the Trial Court preferred in R.F.A.Nos.153/2017
and 154/2017 before this Court. This Court vide order
dated 26.10.2021 has passed an order to proceed with the
final decree proceedings only in respect of item Nos.11 and
12 and insofar as item Nos.9, 10, 11, 13 to 15 of the suit
schedule properties, drawing up a final decree is stayed,
till the disposal of the appeal.
8. In view of the interim order passed by this
Court vide order dated 26.10.2021, there is no legal
impediment for the FDP Court to proceed with the final
decree proceedings in respect of item Nos.11 and 12.
9. In view of the above discussion, the Writ Petition
is partly allowed. The Trial Court is directed to proceed
with the final decree proceedings in respect of item Nos.11
and 12 and draw up a final decree proceedings, in
accordance with law.
10. Learned Senior Counsel for the petitioner
submits that he will not press I.A.No.1/2021 subject to
reserving his right to file an application before the Trial
Court. His submission is placed on record. Accordingly,
I.A.No.1/2021 is dismissed as withdrawn with the
aforesaid liberty.
Sd/-
JUDGE
GJM
