Karnataka High Court
Harish vs Smt Sakamma on 9 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.22757 OF 2021 (GM-CPC)
BETWEEN:
HARISH
S/O LATE D. NARAYANAPPA
AGED ABOUT 53 YEARS
RESIDING AT 2/1, 14TH MAIN,
HAL 2ND STAGE,
BENGALURU,
KARNATAKA-563 126.
...PETITIONER
(BY SRI. ABHINAY Y.T., ADVOCATE)
AND:
1. SMT. SAKAMMA
W/O LATE MUNIMARAIAH
AGED ABOUT 65 YEARS
RESIDING AT LAKSHMIPURA VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562 162.
2. SMT. PUTTAMMA
D/O LATE MUNIMARIAH
AGED ABOUT 44 YEARS
RESIDING AT VEERAVANJIPURA,
BUDIGAL POST,
NELAMANGALA TALUK,
BENGALURU-562 123.
2
3. SMT. MAYAMMA
D/O LATE MUNIMARAIAH
AGED ABOUT 45 YEARS.
4. RAJU
S/O LATE MUNIMARAIAH
AGED ABOUT 40 YEARS.
5. KUMAR
S/O LATE MUNIMARAIAH
AGED ABOUT 34 YEARS.
6. JAYARAMU
S/O LATE MUNIMARIAH
AGED ABOUT 31 YEARS.
RESPONDENTS 3 TO 6
ARE RESIDING AT
LAKSHMIPURA VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562 162.
7. SMT. GOWRAMMA
D/O LATE MUNIMARAIAH
AGED ABOUT 24 YEARS
RESIDING AT BYLEKERE VILLAGE,
SOLUR HOBLI,
MAGADI TALUK,
BENGALURU-562 127.
8. SMT. MUNIYAMMA
D/O LAKSHMAMMA
W/O THIMMAYYA
AGED ABOUT 63 YEARS
RESIDING AT MALIDONDANAHALLI,
RAMOHALLI,
BENGALURU SOUTH TALUK,
BENGALURU-560 060.
3
9. MANJUNATH
GRANDSON OF LAKSHMAMMA
S/O LATE AKKAMMA
AGED ABOUT 35 YEARS
BEHIND NAGASANDRA
GOVERNMENT SCHOOL,
NAGASANDRA,
BENGALURU NORTH TALUK,
BENGALURU-560 075.
10. LAKSHMINARASIMHA MURTHY G.
GRANDSON OF LAKSHMAMMA
S/O LATE AKKAMMA
AGED ABOUT 33 YEARS
RESIDING AT 667/1,
1ST CROSS, NAGASANDRA,
BENGALURU NORTH,
BENGALURU-560 073.
11. HANUMANTHA RAJU
GRANDSON OF LAKSHMAMMA
S/O LATE AKKAMMA
AGED ABOUT 33 YEARS
BEHIND NAGASANDRA
GOVERNMENT SCHOOL,
NAGASANDRA,
BENGALURU NORTH,
BENGALURU-560 073.
12. SMT. LAKSHMIDEVAMMA
D/O LATE VARADAIAH
AGED ABOUT 36 YEARS
RESIDING AT LAKSHMIPURA VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562 162.
....RESPONDENTS
4
(BY SRI. MADHUKAR DESHPANDE, ADVOCATE FOR R1 AND R3
TO R11; SRI. NISHANTH A.V., ADVOCATE FOR R2 AND R12)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER 8TH NOVEMBER, 2021 PASSED ON IA NO.6 IN ORIGINAL
SUIT NO.247 OF 2011 BY THE SENIOR CIVIL JUDGE,
NELAMANGALA (ANNEXURE-K) AND CONSEQUENTLY ALLOW IA
NO.6; AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS
DAY THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, petitioner has challenged the order
dated 08th November, 2021 passed on IA.6 in Original Suit
No.247 of 2011 (Annexure-K) on the file of the Senior Civil
Judge, Nelamangala (for short, hereinafter referred to as 'trial
Court').
2. It is the case of the plaintiff that he has filed suit for
specific performance of Agreement of Sale deed dated 09th
October, 2002 in respect of the suit schedule property. The
defendants entered appearance and filed written statement
before the Court. In the meanwhile, the trial Court has passed
an order dated 17th January, 2013 on the application filed by the
plaintiff under Order XXXIX Rule 1 and 2 directing the
defendants not to alienate the suit schedule property.
Thereafter, the defendants have filed an application under Order
VII Rule 11(d) of Civil Procedure Code, seeking dismissal of the
suit. The said application filed by the defendants came to be
allowed by the trial Court on 26th September, 2013. Feeling
aggrieved by the same, the plaintiff has filed Regular First
Appeal No.1959 of 2013 before this Court and this Court by
judgment and decree dated 03rd September, 2018 passed the
following order:
"The appeal is partly allowed. The order dated
26.09.2013 in O.S.No.247/2011 passed on I.A.NO.4
by the Senior Civil Judge and J.M.F.C., Nelamangala,
rejecting the plaint is only restricted to the first
prayer sought in the plaint is concerned. So far as
second prayer is concerned, the matter is remitted
to the Trial Court for disposal of the same in
accordance with law."
3. Thereafter, in terms of the judgment and decree passed
by this Court insofar as second prayer, this Court remanded the
matter to trial Court for disposal of the same. In view of the
remand made by this Court, plaintiff has filed IA.6 before the
trial Court under Order XXXIX Rule 1 and 2 of the Civil
Procedure Code for restraining the defendants from
encumbering or alienating the suit schedule property. The trial
Court issued notice on IA.6 to the defendants. Feeling
aggrieved by the same, the plaintiff has presented this writ
petition.
4. Sri. Abhinay Y.T., learned counsel appearing for
petitioner contended that the plaintiff had benefit of the Interim
Order before the trial Court and also before this Court in Regular
First Appeal No.1959 of 2013 and on remand, the apprehension
of the plaintiff is that defendants may alienate the suit schedule
property by creating third party rights. Accordingly, Sri.
Abhinay Y.T., learned counsel submits that the trial Court ought
to have considered IA.6 and ought to have granted Interim relief
to the plaintiff.
5. Per contra, Sri. Madhukar Deshpande, learned counsel
appearing for Respondents 1 and 3 to 11; Sri. Nishanth A.V.,
learned counsel appearing for respondents 2 and 12 have
submitted that the judgment and decree passed by this Court in
Regular First Appeal No.1959 of 2013 dated 03rd September,
2018 is confirmed by Hon'ble Supreme Court in SLP No.32397 of
2018 dated 14th December, 2018. They further contended that
insofar as the property which is the subject matter insofar as the
remand order is concerned, the same has been sold on 03rd
March, 2021 by the respondents herein. Therefore, it is the
contention of the learned counsel for respondents herein that
the Interim Order granted by this Court on 13th December, 2021
cannot be extended as argued by the learned counsel appearing
for petitioner.
6. In the light of submission made by learned counsel for
the parties, the impugned order has been passed by the trial
Court upon remand by this Court in Regular First Appeal
No.1959 of 2013 and the trial Court has issued notice on IA.6.
Granting or refusal of the Interim Order by the trial Court on the
application made by the parties under Order XXXIX Rule 1 and 2
is discretionary in nature and should be supported by sound
judicial principles. In the impugned order, the trial Court has
issued notice to the defendants on IA.6 to 12 and the same
cannot be said that the trial Court has not applied its mind. In
that view of the matter, I am of view that, in view of the notice
issued on IAs.6 to 9, the defendants shall file objections to the
aforementioned applications at the earliest and the trial Court
shall consider the same within two months from thereafter.
Accordingly, writ petition is disposed of.
Learned counsel representing the respondents undertakes
to appear before the trial Court on the next date of hearing.
Sd/-
JUDGE
ARK
