Karnataka High Court
Sri B H Udaya Pai vs Vamana Nayak S/O Dr P Vishwanatha ... on 5 January, 2023
Bench: H T Prasad
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MFA No. 11438 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 11438 OF 2011 (CPC)
BETWEEN:
SRI B H UDAYA PAI
S/O B H GANAPATH PAI
AGEDA BOUT 40 YEARS
R/AT MAIN ROAD
P O PANEMANGALORE-574231
BANTWAL TALUK (DK).
...APPELLANT
(BY SRI. M SUDHAKAR PAI.,ADVOCATE)
AND:
Digitally signed
by
DHANALAKSHMI 1. VAMANA NAYAK
MURTHY S/O DR P VISHWANATHA NAYAK
Location: High AGED ABOUT 15 YEARS
Court of
Karnataka MINOR REP BY HIS NATURAL GUARDIAN
MOTHER SMT DR JAYAMALA VISHWANATH
AGED 46 YEARS
W/O DR P VISHWANATHA NAYAK
R/AT BONDALA HOUSE
PANEMANGALORE VILLAGE
P O PANEMANGALORE574231
BANTWAL D K
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MFA No. 11438 of 2011
2. SMT VINODA @ VIJAYALAKSHMI
W/O LATE VARADARAYA NAYAK
AGED ABOUT 79 YEARS.
3. SRI VASUDEVA NAYAK
AGED ABOUT 54 YEARS
4. DR VISHWANATHA NAYAK
AGED ABOUT 49 YEARS
5. SRI VENUGOPALA NAYAK
AGED ABOUT 45 YEARS
R2 TO R5 ARE R/AT NO.18-137
V V NIVESHAN MAIN ROAD
P O PANEMANGALORE0-574231
BANTWAL TALUK DK.
...RESPONDENTS
(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE R1:
NOTICE TO R2 TO R5 ARE SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 2.11.2011 PASSED ON IA NO.2
IN O.S.NO.2/2010 ON THE FILE OF SENIOR CIVIL JUDGE &
JMFC, BANTWAL, DAKSHINA KANNADA, PARTLY ALLOWING IA
NO.2 FILED U/ORDER 39 RULES 1 & 2 R/W SEC 151 OF CPC
FOR T.I.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 11438 of 2011
JUDGMENT
This appeal under Order 43 Rule 1(r) of the CPC is
filed by the defendant No.5 in O.S.No.2/2010 before the
Senior Civil Judge and JMFC, Bantwal, D.K., challenging
the order dated 2.11.2011 passed on I.A.No.II filed under
Order 39 Rules 1 and 2 read with Section 151 of CPC.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The plaintiff has filed the suit in O.S.No.2/2010
before the Senior Civil Judge and JMFC, Bantwal, D.K. for
partition and separate possession. He has also filed I.A.II
under Order 39 Rules 1 and 2 read with Section 151 of
CPC seeking for grant of an order of temporary injunction
against the respondent Nos.2 to 5/defendants restraining
them, their men, servants, agents etc. from in any way
meddling with the plaint 'B' shedule properties by
alienation or creating charge or altering the status quo,
MFA No. 11438 of 2011
pending disposal of the suit. The said application has been
allowed by the Trial Court by order dated 2.11.2011. Being
aggrieved by the same, the defendant No.5, who claims to
have purchased item No.5 in 'B' schedule property in
auction, has filed this appeal.
4. This Court by order dated 4.1.2012 granted
stay in respect of 0.50 cents in Sy.No.29/2 of
Panemangalore Village, Bantwal Taluk for a period of eight
weeks. The said interim order was extended from time to
time and later it was made absolute. The interim order
operates from last 11 years.
Under the circumstances, in the interest of justice,
the order dated 2.11.2011 passed by the Trial Court on
I.A.No.II deserves to be modified.
5. Accordingly, the order dated 2.11.2011 passed
by the Trial Court on I.A.No.II in O.S.No.2/2010 before the
Senior Civil Judge and JMFC, Bantwal, D.K., is modified.
MFA No. 11438 of 2011
The plaintiff and defendant No.5 are directed to
maintain status-quo, as it exists today, in respect of land
measuring 0.50 cents in Sy.No.29/2, Panemangalore
Village, Bantwal Taluk, till the disposal of the suit.
With the above observation, the appeal is disposed
of.
Sd/-
JUDGE
DM
