Karnataka High Court
Smt Rekha vs The Chief Executive Officer on 30 August, 2023
Bench: S.G.Pandit
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WP No. 18383 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 18383 OF 2023 (GM-CPC)
BETWEEN:
1. SMT. REKHA
D/O PARAMESHWARI
AGED ABOUT 33 YEARS
2. SANNIDHI
AGED ABOUT 7 YEARS (MINOR)
D/O SMT. REKHA
NO.2 BEING REPRESENTED BY
HER MOTHER / NATURAL GUARDIAN
BOTH ARE R/AT PAIGALAHITHLUARATE
HOSADU VILLAGE AND POST
KUNDAPURA TALUK-576201.
...PETITIONERS
(BY SRI. K SHRIHARI, ADV.)
AND:
Digitally signed by
A K CHANDRIKA 1. THE CHIEF EXECUTIVE OFFICER
Location: High KAMBADAKONE VYAVASAYA SEVA,
Court of Karnataka SAHAKARI SANGHA NIYAMITHA
UPPUNDA VILLAGE AND POST,
BYNDOOR TALUK-576204.
2. THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES
KUNDAPURA-57201.
3. SMT. PUTTI HENGSU
D/O LATE MACHI HENGSU
4. SMT. DURGI
AGED ABOUT 82 YEARS
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5. LAKSHMANA
AGED ABOUT 50 YEARS
6. SMT. SEETHA
AGED ABOUT 45 YEARS
7. GANESH POOJARY
AGED ABOUT 42 YEARS
NO.3 TO NO.7 ARE CHILDREN OF
SMT. PUTTI HENGSU
8. SMT. LAKSHMI
W/O LATE RAMA
AGED ABOUT 60 YEARS
9. SMT. GAYATHRI
AGED ABOUT 35 YEARS
10. SMT. SAVITHRI
AGED ABOUT 30 YEARS
NO.3 TO 10 ARE R/AT
SANNAGUDDIMANE,
KAMBADAKONE VILLAGE
BYNDOOR TALUK-576219.
11. NARASIMHA
AGED ABOUT 68 YEARS
12. NARAYANA
AGED ABOUT 54 YEARS
13. SRINIVASA
AGED ABOUT 58 YEARS
14. MAHALINGA
AGED ABOUT 54 YEARS
15. SEETHARAMA
AGED ABOUT 50 YEARS
16. MOOKAMBU
NO.11 TO 16 ARE CHILDREN OF
LATE VENKAMMA HENGSU
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R/AT KORSE VILLAGE, BISILAKOPPA
SIRSI TALUK,
UTTARA KANNADA-560021.
17. LOKESH
AGED ABOUT 40 YEARS
18. SMT. ROOPA
AGED ABOUT 30 YEARS
NO.17 AND 18 ARE CHILDREN OF
LATE SMT. PARAMESHWARI
19. SEEKSHA
MINOR
D/O SMT. ROOPA
REP. BY HER MOTHER NATURAL GUARDIAN
SMT. ROOPA
20. NAGARAJA
AGED ABOUT 32 YEARS
21. SRINATHA POOJARY
AGED ABOUT 28 YEARS
22. JYOTHI
AGED ABOUT 25 YEARS
NO.20 TO 22 ARE CHILDREN OF
SMT. DURGI HENGSU
23. VIVEK BILLAVA
S/O SEETHA
AGED ABOUT 54 YEARS
NO.17 TO 23 ARE R/AT
SANNAGUDDIMANE
KAMABADAKONE VILLAGE
BYNDOOR TALUK-576219.
...RESPONDENTS
(BY SRI K. CHANDRANATHA ARIGA, ADV. C/R)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE JUDGEMENT
AND ORDER DATED 07.07.2023 IN MISC.APL NO.06/2023 PASSED
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BY THE SENIOR CIVIL JUDGE AT KUNDAPURA WHICH IS AT ANNX-A
TO THE WRIT PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/plaintiffs in O.S.No.454/2022 are
before this Court under Article 227 of the Constitution of
India challenging the judgment and order dated
07.07.2023 in Miscellaneous Appeal No.6/2023 setting
aside order dated 25.03.2023 on I.A.No.2 filed under
Order XXXIX Rules 1 and 2 of CPC in O.S.No.220/2023 on
the file of the Civil Judge and JMFC., Baindooru.
2. Heard the learned counsel Sri.K.Srihari for
petitioners/plaintiffs, learned counsel Sri.K.Chandranath
Ariga for Caveator/respondent No.1 as well as learned
High Court Government Pleader for respondent No.2.
Perused the writ petition papers.
3. Learned counsel for the petitioners/plaintiffs
would submit that petitioners/plaintiffs instituted
O.S.No.220/2023 for partition of 'A' schedule property
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into 21 fair and equal shares. Learned counsel would
submit that the parties to the suit are governed by
Aliyasanthana Law. It is submitted that along with suit,
I.A.No.2 was filed under Order XXXIX Rules 1 and 2 of CPC
to restrain defendant Nos.1, 22 and 23 from attachment
and sale of plaintiffs' 2/21st share in 'A' Schedule property
till disposal of the suit. Learned counsel for
petitioners/plaintiffs would submit that defendant Nos.1, 3
and 21 had obtained loan from defendant No.22 and had
failed to repay the loan. The defendant No.22 initiated
recovery proceedings and attached item No.1 of suit
schedule 'A' property to realize the dues of defendant
No.22. Learned counsel for petitioners/plaintiffs would
submit that the Trial Court on finding prima-facie case,
allowed I.A.No.2 filed under Order XXXIX Rules 1 and 2 of
CPC and restrained defendant Nos.1, 22 and 23 from
attaching plaintiffs' 2/21st share in suit 'A' Schedule
property till disposal of the suit. Against the said order,
defendant No.22 filed Miscellaneous Appeal No.6/2023.
The Appellate Court under impugned judgment dated
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07.07.2023 allowed the appeal and set aside the order
dated 25.03.2023 on I.A.No.2 in O.S.No.220/2023 and
dismissed I.A.No.2 filed under Order XXXIX Rules 1 and
2 of CPC. Against the said order, the petitioners/plaintiffs
are before this Court.
4. Learned counsel for the petitioners/plaintiffs
would submit that the impugned order of the Appellate
Court setting aside the order of injunction granted by the
trial Court is wholly illegal, perverse and is the result of
non-application of judicial mind by the Appellate Court.
Learned counsel would submit that the Appellate Court
failed to appreciate the existence of petitioners' undivided
interest over the schedule "A" property more particularly,
item No.1 therein. It is submitted that the Appellate Court
committed an error in allowing the appeal filed by
respondent No.1 and the Appellate Court could not have set
aside the injunction granted by the trial Court, till the
legitimate rights of the petitioners are decided in the
pending suit. Further, learned counsel would submit that
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the Appellate Court failed to appreciate the fact that notice
sent by the petitioners under Section 101 of the Karnataka
Co-operative Societies Act, 1959 (for short "1959 Act") is
not considered in its proper perspective. Further, he
submits that the authorities ought to have considered
petitioners' objection or claim to the suit schedule property.
Further it is submitted that the Appellate Court committed
an error in allowing the appeal filed by respondent No.1
herein only on the ground that the petitioners have
alternate remedy under Section 101 of 1959 Act. Since the
petitioners have undivided right over the suit schedule
property, the Appellate Court ought not to have interfered
with the order of injunction granted by the trial Court. It is
submitted that the parties to the suit are governed by
Aliyasanthana Law. By inheritance and by birth, the
petitioners have acquired right over the suit schedule
property. Thus, he prays for allowing the writ petition.
5. Per contra, learned counsel Sri.Chandranatha
Ariga for respondent No.1 would submit that defendants
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No.1, 3 and 21 obtained loan from respondent No.1 herein
Vyavasaya Seva Sahakara Sangha by mortgaging item
No.1 suit schedule "A" property i.e., Sy.No.66/8
measuring 1 acre 35 cents. As the defendants No.1, 3 and
21 failed repay the loan, respondent No.1/defendant
No.22 in the suit brought the property mortgaged for sale
in terms of provisions of 1959 Act and Rules made
thereunder. Learned counsel would submit that the first
defendant has a statutory duty to recover dues from the
lonees and no Court could injunct performance of
statutory duty. Further, learned counsel would submit
that the present partition suit is filed only to prevent
respondent No.1 from realizing its dues by enforcing
mortgage. Learned counsel would submit that the
petitioners have remedy under the provisions of 1959 Act.
Thus, he justifies the order passed by the Appellate Court.
6. Having heard the learned counsel for the parties
and on perusal of the writ petition papers, I am of the
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view that the petitioners have not made out any ground to
interfere with the impugned appellate order.
7. It is an admitted fact that defendants No.1, 3
and 21 obtained loan from defendant No.22 i.e.,
respondent No.1 herein/Society. As the said defendants
failed to repay the loan, respondent No.1 brought the
mortgaged property for sale to realize the dues. It is
stated that defendants No.1, 3 and 21 are due in a sum of
Rs.49,22,104/- to the first respondent-Society. The
Society had raised dispute in Dispute No.774/2020-21 and
in the said dispute, an award was passed on 07.04.2021.
Thereafter, the Society filed Execution Petition in
C.E.P.No.967/2021-22 and initiated sale proceedings in
respect of Sy.No.66/8 to an extent of 1 acre 35 cents.
The petitioners having kept quite all along, only when
respondent No.1/Society initiated Execution Proceedings
have come up with suit in O.S.No.220/2023 (Old
No.454/2022) for partition. The petitioners have not filed
any claim petition nor availed any remedy as provided
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under 1959 Act. The petitioners are required to file
appropriate claim petition under the provisions of 1959 Act
and representation in that regard would not be
maintainable.
8. Moreover, if the first respondent-Society has
initiated recovery proceedings in terms of the provisions of
1959 Act, no Court could injunct performance of statutory
duty i.e., recovery proceedings initiated under 1959 Act.
The Society deals with public money and it has a duty to
recover public money. The Appellate Court is justified in
observing that the trial Court while granting injunction,
failed to take into consideration the provisions of 1959 Act.
It is contended that when the suit for partition is pending
between the parties, if the properties are attached or sold,
the same would create more complications. That cannot
be a reason to injunct respondent No.1-Society from
recovering its dues which is a public money. Change over
public money would prevail over the rights of the parties.
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No ground is made out to interfere with the order
passed by the Appellate Court. Accordingly, the writ
petition stands rejected.
Sd/-
JUDGE
NC
CT:bms
