Karnataka High Court
N Jaipal vs Mrs Gracy on 10 August, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:28333
MFA No. 5374 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 5374 OF 2023 (CPC)
BETWEEN:
N JAIPAL
S/O LATE G NARASAIAH
AGED ABOUT 52 YEARS
RAT NO. 10/3A
2nd CROSS, MUTHAPA BLOCK
R T NAGAR, BENGLAURU 560 032.
...APPELLANT
(BY SRI. GANESH V SHIVASWAMY.,ADVOCATE)
AND:
1. MRS GRACY
W/O LATE JAKRIAS A
AGED ABOUT 56 YEARS
PRESENTLY R/AT NO. 46
7th MAIN ROAD, NEAR MOSQUE
VASANTH NAGAR, BENGALURU 560 052.
Digitally signed
by 2. MRS. SUDHA J
DHANALAKSHMI
MURTHY W/O SRI. ANTHONY S
Location: High D.O LATE JAKRIAS A
Court of AGED ABOUT 43 YEARS
Karnataka PRESENTLY RAT NO 46
7th MAIN ROAD,NEAR MOSQUE
VASANTHA NAGAR
BEGNALURU 560 052.
3. MRS. MARIA SHALINI J
W/O SRI. FRNKLIN SELVAM
D/O LATE JAKRIAS A
AGED ABOUT 36 YEARS
PRESENTLY RAT NO 46
-2-
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MFA No. 5374 of 2023
7th MAIN ROAD, NEAR MOSQUE
VASANTHA NAGAR
BEGNALURU 560 052.
4. MR. KANIKYA DAS A
S/O LATE J AROKYA SWAMY
AGED ABOUT 65 YEARS
PRESENTLY RAT NO 46
7th MAIN ROAD, NEAR MOSQUE
VASANTHA NAGAR
BEGNALURU 560 052.
5. MRS. ENBA MARY A
W/O SRI. LOUIS S
D/O LATE J AROKYA SWAMY
AGED ABOUT 62 YEARS
PRESENTLY AR/AT NO. 85
MAKUNTAMMA NAGAR
NEAR BEL COLLEGE
DODDABANASWADI
KALYN NAGAR, BENGLAURU 560 043.
6. MR. JAMES A
S/O LATE J AROKYA SWAMY
AGED ABOUT 60 YEARS
PRESENTLY R/AT NO. 3A BLOCK
ANNASWAMY QUARTERS
SANDGE ROAD, FRAZER TOWN
BENGALURU 560 005.
7. MRS. SHEELA A
W/O SRI. DAS
D/O LATE J AROKYA SWAMY
AGED ABOUT 52 YEARS
PRESENTLY RAT NO 46
7th MAIN ROAD, NEAR MOSQUE
VASANTHA NAGAR
BEGNALURU 560 052.
8. MRS. LILLY MARY
W/O LATE SANGAYA RAJ A
-3-
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MFA No. 5374 of 2023
AGED ABOUT 55 YEARS
9. MASTER EMMANUVEL S
S/O LATE SANGAYA RAJ A
AGED ABOUT 13 YEARS
10. MASTER SAMUVEL S
S/O LATE SANGAYA RAJ A
AGED ABOUT 13 YEARS
R9 AND 10 ARE MINORS
REPRESENTED BY THEIR
MOTHER AND NATURAL
GUARDIAN MRS. LILLY MARY
R8 TO R10 ARE PRESENTLY R/AT NO. 28
ALMIGHTY GRACE, 4th MAIN ROAD
MATADAHALLI, R T NAGAR POST
BENGALURU 32. ...RESPONDENTS
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 20.06.2023 PASSED ON I.A.
NO.1 IN O.S.NO. 26132/2021 ON THE FILE OF THE XIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BENGALURU (CCH-22), ALLOWING THE I.A. NO.1 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal under Order XLIII Rule 1(r) of CPC is
filed by the defendant No.4 in O.S.No.26132/2021
challenging the order dated 20.06.2023 passed by the XIII
Additional City Civil and Sessions Judge, Mayohall Unit,
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MFA No. 5374 of 2023
Bengaluru (CCH-22) only in respect of I.A.No.1 filed under
Order XXXIX Rule 1 and 2 of CPC.
2. For the sake of the convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The plaintiffs have filed the suit for partition and
separate possession in respect of the suit schedule
property. Along with the plaint, the plaintiffs have filed
I.A.Nos.1, 2 and 4. The present appeal is filed before this
Court only in respect of order passed on I.A.No.1 filed
under Order XXXIX Rule 1 and 2 of CPC.
4. I.A.No.1 is filed by the plaintiffs seeking temporary
injunction to restrain the defendants from alienating the
suit schedule property. The trial Court after hearing the
parties, has allowed I.A.No.1 filed by the plaintiffs under
XXXIX Rule 1 and 2 of CPC and restrained the defendants
from alienating or creating encumbrance on suit schedule
property, till disposal of the suit. Being aggrieved by the
same, defendant No.4 is before this Court in this appeal.
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MFA No. 5374 of 2023
5. The learned counsel for defendant No.4 has
contended that he has purchased the property from the
erstwhile owner of the suit schedule property and he has
been in possession of the property. The trial Court while
deciding the applications, has prejudged the issue in
respect of merit of the case. He further contended that the
right of the plaintiffs has been protected under Section 52
of the Transfer of Property Act. Therefore, the question of
allowing I.A.No.1 will not arise.
6. Be that as it may. I.A.No.1 is filed under XXXIX Rule
1 and 2 of CPC seeking Temporary Injunction restraining
the defendants from alienating the suit schedule property.
Since the very same property is under dispute, the trial
Court is justified in restraining the defendants from
alienating the suit schedule property. While deciding
I.A.No.1, the trial Court has given a finding regarding the
validity of the sale deed and gone into merit of the case.
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MFA No. 5374 of 2023
7. It is made clear that the trial Court while deciding the
suit on merit shall not be influenced by any observation
made in the impugned order dated 20.06.2023.
8. With that observation, the appeal is disposed of.
Injunction order passed by the trial Court in respect of I.A.
No.1 in O.S.No.26132/2021 dated 20.06.2023 restraining
the defendants from alienating or creating any
encumbrance on the suit schedule property shall be
continued, till disposal of the suit.
9. In view of disposal of the main appeal, all pending
applications do not survive for consideration and hence the
same are also disposed of.
Sd/-
JUDGE
HA
