Sri U R Ranganatha vs Sri D N Chandrashekhar
2022 Latest Caselaw 7431 Kant

                          -1-



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF MAY, 2022

                        BEFORE

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

     MISCELLANEOUS FIRST APPEAL NO.8187/2016 (CPC)

BETWEEN:

1.     SRI. U. R. RANGANATHA
       AGE: 48 YEARS,
       S/O. R. RANGAIAH,
       R/AT NO. 44,
       R/AT NO.44, RAGHAVENDRA SCHOOL,
       MOODALAPALYA,
       NAGARABHAVI ROAD,
       BANGALORE - 560 072.

2.     SRI. D S CHANDRU
       AGE: 48 YEARS,
       S/O. LATE SHIVANNA,
       R/AT NO. 908/D,
       19TH CROSS, 19TH MAIN ROAD,
       IDEAL HOME TOWNSHIP,
       RAJARAJESHWARINAGAR,
       BANGALORE - 560 091.
                                      ... APPELLANTS

(BY MS.RAKSHITHA D.J., ADVOCATE FOR
M/S. D.L.J ASSTS.)

AND:
SRI. D. N. CHANDRASHEKHAR
AGE: 52 YEARS,
S/O. D R NARAYANA REDDY,
R/AT NO. 697, 3RD CROSS,
DOMLUR LAYOUT,
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BANGALORE - 560 071.                        ... RESPONDENT

(BY SRI. PRADEEP KUMAR R.H., ADVOCATE FOR
    SRI. SHANMUAPPA, ADVOCATE)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER XLIII RULE 1(r) OF CPC PRAYING TO SET ASIDE THE
ORDER DATED 22.11.2016, IN O.S. NO. 5297/2016 ON I.A. NO.I
FILED BY RESPONDENT UNDER ORDER XXXIX RULE 1 & 2
READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE IN
DIRECTING THE PARTIES TO MAINTAIN STATUS QUO BY
ALLOWING THIS MISCELLANEOUS FIRST APPEAL.

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

                         JUDGMENT

The defendants in O.S. No.5297/2016 on the file

of the XIV Additional City Civil Judge, Bengaluru (for

short, 'Civil Court') have impugned the order dated

22.11.2016. The Civil Court by this order has allowed

the respondent's - plaintiff's application (IA No.1) and

rejected the appellants'-defendants' application (IA

No.4). The applications are respectively under Order

XXXIX Rule 1 and 2 read with Section 151 and Order

XXXIX Rule 4 of the Code of Civil Procedure, 1908

(CPC). The Civil Court has directed the parties to

maintain status quo with regard to possession of the

site bearing No.40 (katha No.412) Assessment register

No.10/2 of Monnekolala village, Varthur Hobli,

Bengaluru South Taluk [the subject property] with the

observation that the status quo shall continue till the

disposal of the suit. This Court on 24.01.2017, while

issuing notice to the respondent, has stayed the Civil

Court's impugned order.

2. The respondent has impugned the sale deed

dated 24.08.2001 executed by a certain Sri.T.P.Philips

as his power of attorney and the subsequent Release

deed dated 16.9.2014 inter se the appellants and the

later Mortgage dated 16.9.2014 executed by the second

appellant in favour of M/s. Creative Credit Co-operative

Society Limited to secure the loan availed by him. The

respondent has filed application (IA No.1) under Order

XXXIX Rule 1 and 2 of CPC for temporary injunction

restraining the second appellant from alienating,

or encumbering the suit schedule property until the

disposal of the suit. It is in consideration of this

application, the Civil Court has directed the parties to

maintain status quo as regards the possession of the

suit schedule property.

3. The appellants' chief grievance is that when

the respondent's application is for alienation, the

impugned order is passed directing the parties to

maintain status quo as regards possession of the suit

schedule property. The learned counsel for the

appellants, while reiterating the facts of the case,

submits that though the second appellant has created

charge over the suit schedule property in favour of

M/s.Creative Credit Cooperative Society to secure loan

available for the purposes of construction, the

construction is yet to be commenced. The appellants have

constructed a compound wall to the subject property. The

second appellant, to ensure that there is no default and that

the subject property is not brought to sale with

initiation of coercive measures for enforcement of the

security in favour of Co-operative society, has kept the

loan up-to-date. She also submits that the appellants

do not propose to further alienate the subject property

until the disposal of the suit.

4. The learned counsel for the respondent is

unable to controvert that the respondent's application

for injunction is not against dispossession but for

injunction against alienation. It would be difficult to

sustain the impugned order when it cannot be disputed

that the application is only for temporary injunction

against alienation and the direction is to maintain

status quo as regards possession. Therefore, the

appellants will have to succeed in the case.

5. However, insofar as the respondent's request

for injunction against alienation, the same must be

considered in the light of the undisputed fact that the

impugned sale deed, which is the basis for the

subsequent registered transactions, is executed not by

the respondent himself but allegedly by his Power of

Attorney, Sri,T.P.Philips. According to the appellants,

the respondent has appointed and constituted

Sri.T.P.Philips as his Power of Attorney vide Power of

Attorney dated 9.7.1997. The merits of the assertion will

have to be tested in the light of the evidence that the

parties will place on record before the Civil Court. If in

the meanwhile there is further alienation, the third

party rights will be created leading to further

proceedings. The suit, which is commenced in the year

2016, is pending consideration for the last six years and

the parties are yet to commence the suit.

6. In the light of these circumstances, this

Court is of the considered view that there is a prima

facie case and balance of convenience in favour of

injunction against alienation of the suit schedule

property during the pendency of the suit. The

respondent could also be put to irreparable hardship if

there is alienation. Hence, there must be an interim

order directing the parties to maintain status quo as

regards the title to the subject property till the disposal

of the suit while calling upon the second appellant to

ensure that the property is not brought to sale or

coercive measures are initiated because of any default.

Hence the following:

ORDER

The appeal is allowed in part. The impugned

order dated 22.11.2016 in O.S.No.5297/2016 is

modified directing the appellants and the

respondent not to create any other third party

rights or interest over the subject property during

the pendency of the suit. The second appellant

shall ensure that the cooperative society viz., M/s.

Creative Credit Cooperative Society has no cause

for initiating the proceedings to enforce security.

The appellants and the respondent are also called

upon to assist the Civil Court in expeditious

disposal of the suit and in all events within an

outer limit of twelve (12) months from the date of

receipt of certified copy of this order.

In view of disposal of the main petition, the

application in IA No.1/2016 does not survive for

consideration and the same is disposed of accordingly.

SD/-

JUDGE

SA Ct:sr