Karnataka High Court
K Srinivas vs Smt Vanajakshi on 10 June, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 55059 OF 2016(GM-CPC)
BETWEEN:
K. SRINIVAS
S/O LATE H.B. KRISHNAPPA,
AGED ABOUT 70 YEARS,
R/O NO.1748, ASHRAYA CONSTRUCTIONS,
3RD MAIN, SAMRAT LAYOUT,
BANNERUGHATTA ROAD,
ARAKERE, BANGALORE-560 076.
...PETITIONER
(BY SRI.HARISH KUMAR M S, ADVOCATE)
AND:
SMT. VANAJAKSHI
W/O. Y.L. SHASHIDHAR,
AGED ABOUT 65 YEARS,
R/O D.NO. 14/2, I BLOCK EAST,
BYRASANDRA MAIN ROAD,
JAYANAGAR, BANGALORE-560 011.
...RESPONDENT
(BY SRI.P N HARISH, ADVOCATE)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
PASSED BY THE I ADDL. CIVIL JUDGE [SR.DN] & CJM AT SHIMOGA
2
IN SO FAR AS ON I.A. DTD.6.8.2016 FILED UNDER ORDER 38 RULE
6 IN F.D.P.NO.22/2011 VIDE ANNEX-M SEEKING SETTING ASIDE
THE ORDER DTD.19.1.2016 ON I.A.NO.7 IN F.D.P.NO.22/2011
VIDE ANNEX-H.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the defendant No.1
questioning the order of the FDP Court passed on I.A.No.7
filed under Order 38 Rule 5 read with Section 151 of CPC.
2. One K.Venkatesh instituted a suit for partition and
separate possession in O.S.No.20/1995 seeking partition by
metes and bounds. In the said suit, the present respondent
herein was arrayed as defendant No.5. The learned Judge by
judgment and decree dated 21.12.2001 decreed the suit by
granting 1/7th share to defendant No.5 in item Nos.1 and 4 of
the suit schedule property.
3. It is very strange to note that though the present
respondent is awarded 1/7th share in item Nos.1 and 4,
however, the learned Judge while examining the claim of
plaintiff and defendant No.5 in respect of item No.4, at para
34 held that item No.4 is self acquired property of defendant
No.1 i.e., present petitioner herein. It would be useful for this
Court to refer to para 34 of the judgment rendered in
O.S.No.20/1995 which reads as under:
guntas of Millaghatta the Item-4 of plaint schedule is
concerned. Ex.P-23 the Will mentions bequeath of
this property in favour of defendant-1. Even
according to plaintiff at para-10 of his deposition, he
deposed Item-4 of plaint schedule stands in the name
of defendant-2. There is no document produced by
plaintiff to show how and when this property was
treated as the joint family property. As discussed
earlier, this property is obtained by defendant-1 from
his father under the bequeath Ex.P.23. As such, this
property is the independent self-acquisition of
defendant-1 only and in the absence of any evidence
that it was treated as joint family property, other do
not got any share in this property. Hence, I am of
opinion that in so far as this Item-4 of plaint schedule
is concerned, defendant-1 did succeed in establishing
it as his individual property and plaintiff failed to prove
this as joint family property."
4. It would be useful to refer to the operative portion
of the judgment which reads as under:
"O.S.268/99 is dismissed.
O.S.20/95 is decreed in part.
Plaintiff and defendant 5 are entitled for
partition and separate possession of their 1/7th share
each in Item-1 & 4 of plaint schedule."
5. In the original records, this Court would find that
the numerical '4' is later inserted while pronouncing the
judgment. The operative portion is directly in conflict with the
finding recorded by the Trial Court at para 34 of the judgment.
6. Be that as it may. The defendant No.1 has
accepted the preliminary decree passed in O.S.No.20/1995.
Though item No.4 was held to be self acquired property of
petitioner herein, the learned Judge having answered the said
issue in favour of the petitioner, however, while decreeing the
suit has included item No.4 also. Now in FDP.No.22/2011, the
FDP Court having found that item No.4 is alienated by the
petitioner much prior to filing of the suit at the instance of
respondent No.1 who filed an application under Order 38 Rule
5 of CPC seeking attachment of property held by the present
petitioner herein i.e., item No.2, has allowed the application
and thereby ordered for attachment.
7. Perused the order under challenge and also the
material on record.
8. Admittedly, the respondent herein has initiated final
decree proceedings to carve out her legitimate share and allot
the said property after receiving feasibility of partition. The
main object of attachment before judgment is to enable the
plaintiff to realise the amount of a decree. It is more than
trite that power under Order 38 Rule 5 is a drastic one and an
attachment before judgment is not to be granted merely for
asking and should be exercised with utmost care and caution.
The attachment order is not sustainable in the light of the
finding recorded by the Court below in O.S.No.20/1995. The
matter is decided on merits and the Court has recorded a
finding that item No.4 is self acquired property of defendant
No.1. It is unfortunate that the operative portion is in conflict
with the finding recorded on item No.4 at para 34 of the
judgment.
9. This is a peculiar case where preliminary decree
has attained finality. Though respondent is not entitled for a
share in item No.4, however, decree indicates that she is
entitled for a share. Therefore, even equities are to be looked
into and the conduct of the parties are to be also looked into.
The defendant No.1 cannot be faulted for having alienated
item No.4 much prior to filing of the suit. Attachment order
cannot be issued on the ground that defendant No.1 has
indulged in selling item No.4. If Trial Court found that it is self
acquired property, it was well within the authority of petitioner
to alienate or to deal with the manner in which it intended to.
Therefore, it is in this background, the attachment order
passed by the Court below needs to be examined. The entire
basis for issuing attachment order by the FDP Court is for the
reason that the present petitioner herein has meddled with
item No.4. None of the requisite ingredients contemplated
under Order 38 Rule 5 of CPC are available in the present case
on hand. The respondent has not made out a case which
would have warranted to issue an attachment order. The
preliminary decree passed by the Court below in
O.S.No.20/1995 is not at all executable insofar as item No.4 is
concerned.
10. In that view of the matter, the attachment order
passed by the Court below is not at all sustainable. I am of
the view that the present set of facts would not warrant for
attachment. Therefore, the said order needs to be set aside.
11. Accordingly, I pass the following:
ORDER
(i) The writ petition is allowed;
(ii) The impugned order dated 19.01.2016
passed on I.A.No.7 in FDP.No.22/2011 vide
Annexure-H and also the order dated 06.08.2016
passed on an application filed under Order 38 Rule
6 of CPC vide Annexure-M are set aside.
Sd/-
JUDGE
CA
