Karnataka High Court
Sri. M. Kempanna vs Smt. K. Netravathi on 27 May, 2022
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.360/2019 (CPC)
BETWEEN:
1. SRI. M. KEMPANNA
S/O. LATE. MUNISWAMAPPA,
AGED ABOUT 69 YEARS,
R/AT NO. 3, 10TH CROSS,
BHUVANESHWAR NAGARA,
HEBBAL POST,
BENGALURU 566 024
2. SMT. JAYAMMA
W/O. SRI. M. KEMPANNA,
AGED ABOUT 53 YEARS,
R/AT AMRUTHAHALLI VILLAGE,
KEMPANNA LAYOUT,
SAHAKARANAGARA POST,
BENGALURU 560092
3. SMT. K RATHNAMMA
D/O. SRI. M. KEMPANNA,
AGED 47 YEARS,
R/AT AMRUTHAHALLI VILLAGE,
KEMPANNA LAYOUT,
SAHAKARANAGARA POST,
BENGALURU 560092
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4. SRI. KEMPARAJU
AGED ABOUT 42 YEARS,
R/AT NO. 3, 10TH CROSS,
BHUVANESHWAR NAGARA, HEBBAL POST,
BENGALURU 566 024
5. SMT. VIMALAVATHI
D/O. SRI. M KEMPANNA,
AGED 40 YEARS,
PRESENTLY R/AT NO. 3,
10TH CROSS, BHUVANESHWAR NAGARA,
HEBBAL POST,
BENGALURU 566 024
6. SMT. K. BHARATHI
D/O. SRI. M KEMPANNA,
AGED 38 YEARS,
PRESENTLY R/AT NO. 3,
10TH CROSS, BHUVANESHWAR NAGARA,
HEBBAL POST,
BENGALURU 566 024
... APPELLANTS
(BY SRI. HARISH, ADVOCATE FOR
SMT. VANI H, ADVOCATE)
AND:
1. SMT. K. NETRAVATHI
AGED 41 YEARS,
W/O. H L RAMAMURTHY,
R/AT NO. 22, SHREE. RAMA LAYOUT,
HIRANDALLI MAIN ROAD
VIRGONAGAR POST
BENGALURU - 560 049.
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2. SRI N JAGANATH
S/O R NARASIMHAIAH,
AGED ABOUT 49 YEARS,
RESIDING AT, HOUSE NO 22/2,
NAGAPPA STREET, SESHADRIPURAM,
BENGALURU 560020
3. SRI T NARENDRAN
S/O LATE TEEKARAM,
AGED ABOUT 45 YEARS,
RESIDING AT HOUSE NO 44,
IST FLOOR, MAIN CHANNEL CROSS ROAD,
SHAMANNA GOWDA LAYOUT, ULASURU,
BENGALURU 560008560008
4. M/S NCN DEVELOPERS
OFFICE AT NO 27, NANJAPPA GARDEN,
3RD CROSS, BAUSPALYA
BENGALURU 560043
REPRESENTED BY ITS PROPRIETOR
SRI N SURENDRA NAIDU
... RESPONDENTS
(BY SRI ARJUN BHONSLE, ADVOCATE FOR C/R1;
SRI. H.Y.HARISH, ADVOCATE FOR R2-R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER XLIII RULE 1(r) OF CPC, 1908, PRAYING
TO SET ASIDE THE IMPUGNED ORDER DATED
20.12.2018 PASSED BY THE XIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (MAYO HALL UNIT) BANGALORE
(CCH-22) ALLOWING I.A.NO.1 IN O.S.NO.25329 OF 2018
MARKED AS ANNEXURE-A.
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THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellants are the first to sixth defendants in
O.S.No.25329/2018 on the file of the XIII Additional City
Civil and Sessions Judge, Mayohall Unit, Bengaluru (for
short, 'the civil Court'). The appellants have impugned the
civil Court's order dated 20.12.2018. The civil Court,
allowing the first respondent - plaintiff's application in
I.A.No.1 under Order XXXIX Rule 1 and 2 of the Code of
Civil Procedure, 1908, has restrained the appellants from
alienating or transferring or otherwise encumbering the
suit schedule properties till the disposal of the suit.
2. This Court on 23.04.2019, has stayed the
operation of the impugned order subject to the condition
that the appellants shall not alienate 5 apartments viz.,
apartment/flat Nos.002, 006, 008 in Block 'A' as also
apartment/flat Nos.006 and 002 in Block 'B' in the
apartment building that is being developed in the item
No. 1 of the suit schedule properties. These apartments are
in the ground floor of the respective blocks, and these
apartments are referred to as the subject apartments. This
order is based on the undertaking filed by the appellants.
Apart from the suit No. 1 suit schedule property, five other
immovable properties are listed in the suit.
3. The learned counsel for the appellants submits
that the appellants will continue their undertaking not to
alienate the subject apartments until the final adjudication
in the suit and that the subject apartments would be
commensurate with the share that the first respondent -
plaintiff will be entitled to in the event she succeeds in her
claim for partition of the suit item No.1 schedule properties.
As regards the other suit schedule properties, the learned
counsel submits that the appellants undertake not to
alienate or create any third party interest howsoever in
these properties until the disposal of the suit.
4. The first respondent (the daughter of the first
and second appellants) has commenced the suit for
partition listing six different properties. The siblings and
the purchasers of certain suit properties are arrayed as the
other defendants. The relationship between the first
respondent and the appellants is not disputed. It is also
not disputed that if the appellants adhere to their
undertaking that they will not encumber the subject
apartments or the other plaint schedule properties, the first
respondent's rights would be secured for enforcement in
the event she succeeds in the suit.
5. This Court therefore is of the considered view
that leaving all the questions to be decided after trial
notwithstanding any opinion expressed by the civil Court in
the impugned order, the appeal must be disposed of
modifying the impugned order restraining the appellants
from alienating or otherwise encumbering the subject
apartments in the suit Item No.1 property and the other
properties in terms of their own understanding.
The appeal stands disposed of accordingly.
SD/-
JUDGE
RB
