Smt. K N Neena Patel vs Sri M Ramesh
2022 Latest Caselaw 10692 Kant

                            -1-



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 12TH DAY OF JULY, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.5181/2021 (CPC)

BETWEEN:
SMT. K. N. NEENA PATEL
W/O DR. B. S. SATISHCHANDRA
AGED 53 YEARS
R/AT 1245, "DANISH NILAYA"
2ND MAIN, 5TH CROSS
VIVEKANANDA ROAD
NEAR ARCHANA HOSPITAL
ASHOK NAGAR
MANDYA CITY - 571 401.
                                          ... APPELLANT
(BY MS. ARCHANA MURTHY, ADVOCATE)

AND:

SRI. M. RAMESH
S/O LATE MANCHAIAH
AGED 59 YEARS
R/AT 145/A
NEAR ADARSHA SCHOOL
KARASVADI ROAD
HOSAHALLI EXTN
MANDYA CITY - 571 401.
                                         ... RESPONDENT
(BY SRI. SHREEDHAR B.E, ADVOCATE)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(R) OF CPC, AGAINST THE
ORDER    DATED   04.08.2021 PASSED ON  IA   IN
O.S.NO.161/2020 ON THE FILE OF THE ADDITIONAL
                              -2-



SENIOR CIVIL JUDGE, CJM, MANDYA, ALLOWING THE
APPLICATION FILED U/O.39 RULE 1 AND 2 OF THE CPC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

This appeal is by the defendant in

O.S.No.161/2020 on the file of the Additional Senior

Civil Judge and CJM, Mandya (for short, 'the civil

Court'). The civil Court by the impugned order dated

4.8.2021 has allowed the respondent's-plaintiff's

application under Order XXXIX Rule 1 and 2 of the

Code of Civil Procedure, 1908 restraining the appellant

from alienating the land measuring 1.01 guntas in

Sy.No.3/3 of Kothathi village, Kothathi hobli, Mandya

Taluk, a residential property. It is undisputed that the

respondent's suit is for recovery of Rs.14,42,600/-

based on set of documents such as promissory note and

cheques. In this suit, the respondent-plaintiff has

sought for temporary injunction against alienation.

The learned counsel for the respondent cannot

dispute that the respondent cannot assert any right in

the subject property and in that event injunction

against alienation would be impermissible in law. The

learned counsel for the respondent submits that the

appellant does not have any property other than the

subject property and if this property is sold, the decree

that could be passed against the appellant would be

rendered ineffective. If that is the cause for the

respondent, the respondent must avail appropriate

remedy but cannot maintain an application for

temporary injunction against alienation.

For the foregoing, the appeal is allowed and the

impugned order dated 4.8.2021 in O.S.No.161/2020 on

the file of the Additional Senior Civil Jude and CJM,

Mandya, is set-aside reserving liberty to the respondent,

subject to just exceptions in law, to avail other remedy

that would be available in law.

SD/-

JUDGE SA Ct:sr