Sri.Devaraj vs Lakshmikanthamma
2023 Latest Caselaw 3620 Kant

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                                                NC: 2023:KHC:21559
                                                   WP No. 5729 of 2023




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 22ND DAY OF JUNE, 2023

                                       BEFORE
                    THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                       WRIT PETITION NO. 5729 OF 2023 (GM-CPC)
            BETWEEN:
            1.   SRI.DEVARAJ
                 S/O SUBRAMANI
                 AGED ABOUT 30 YEARS,
                 R/AT CHIKKADASANAHALLI,
                 VILLLAGE, KASABA HOBLI,
                 SIDLAGHATTA TALUK
                 CHIKKABALLAPURA DISTRICT
                 PIN COPDE 562105.

                 NOW RESIDING AT
                 NO 316 B BLOCK
                 UNIQUE CONCORDS APARTMENT
                 TATA NAGAR,
                 BENGALURU.

            2.   NARAYANASWAMY
                 S/O UTHAT NALLAPPA
Digitally
signed by        AGED ABOUT 55 YEARS,
NARASIMHA
MURTHY
VANAMALA    3.   SMT SARITHA
Location:        W/O NARAYANASWAMY
HIGH
COURT OF         AGED ABOUT 52 YEARS
KARNATAKA
                 THE APPELLANTS 2 & 3 ARE
                 R/AT KAMBALIPURA VILLAGE,
                 SULIBELE HOBLI,
                 HOSAKOTE TALUK
                 BANGALORE 562114.

                                                          ...PETITIONERS
            (BY SRI. GANGI REDDY B V.,ADVOCATE)
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                                 NC: 2023:KHC:21559
                                   WP No. 5729 of 2023




AND:


1.   LAKSHMIKANTHAMMA
     W/O LATE BRAHMACHARI TV
     AGED 62 YEARS,


2.   S B KARUNAKAR
     S/O LATE BRAHMACHARI TV
     AGED 31 YEARS,


3.   SRI S B MANJUNATH
     W/O LATE BRAHMACHARI TV
     AGED 29 YEARS,


4.   SRI NARYANAMMA
     W/O LATE NARAYANACHARY
     AGED ABOUT 72 YEARS


5.   SMT PRAMEELAMMA
     W/O GOINATHACHARI
     AGED 39 YEARS


6.   SMT GAYATHRAMMA
     W/O LATE ASHWATHACHARI
     AGED 37 YEARS


7.   SRI CHANDRASHEKAR
     S/O LATE ASHWATHACHARI
     AGED 33 YEARS


8.   SRI RAVIKUMAR
     S/O LATE ASHWATHACHARI
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                                         NC: 2023:KHC:21559
                                             WP No. 5729 of 2023




    AGED 31 YEARS
    R4 TO 8 ARE RESIDING AT
    PANATHUR, DINNE VILLAGE,
    VARTHUR HOBLI,
    BENGALURU NORTH TALUK
    BENGALURU RURAL DISTRICT.

                                                   ...RESPONDENTS
(BY SRI. S GANESH SHENOY.,ADVOCATE FOR R1 TO R3;

   R4 & R7 SERVED)



      THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION
OF INDIA PRAYING TO QUASH THE ORDER DATED 04/02/2023 ON
I.A.NO. 3 FILED UNDER ORDER 41 RULE 5 R/W SEC 151 OF CPC IN
R.A.NO. 50/2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC,
SIDLAGHATTA      AS ANNEXURE-E         AND FURTHER STAY THE
OPERATION JUDGEMENT AND DECREE DATED 18/08/2021 IN
O.S.NO. 57/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC AT SIDLAGHATTA DURING THE PENDENCY OF THE
R.A.NO. 50/2021 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC,
SIDLAGHATTA.

      THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE

COURT MADE THE FOLLOWING:

                               ORDER

This petition by the appellants in R.A.No.50/2021 on the file

of the Senior Civil Judge and JMFC, Sidlaghatta (for short, 'the first

appellate Court') is directed against the impugned order dated

NC: 2023:KHC:21559 WP No. 5729 of 2023

04.02.2023 passed on I.A.No.3 whereby, the said application

(I.A.No.3) filed by the appellant No.1 under Order XLI Rule 5 read

with Section 151 of the Code of Civil Procedure, 1908 (for short,

'CPC') was dismissed by the first appellate Court.

2. Heard learned counsel for the parties and perused the

material on record.

3. The material on record discloses that the respondent

Nos.1 to 3-plaintiffs instituted the aforesaid suit against the

appellants - defendant Nos.4 to 8 and respondent Nos.4 to 8 -

defendant Nos.1 to 4 for declaration, permanent injunction and

other reliefs in relation to the suit schedule immovable properties.

In the said suit, which was contested by the defendants, the trial

Court passed the judgment and decree dated 18.08.2021

decreeing the suit in favour of the plaintiffs against the defendants.

Aggrieved by the same, the petitioners-appellants have preferred

the aforesaid appeal which is pending before the first appellate

Court. In the said appeal, the petitioners having filed the instant

application (I.A.No.3) for stay of the judgment and decree of the

trial Court, the first appellate Court dismissed the said I.A.No.3 by

NC: 2023:KHC:21559 WP No. 5729 of 2023

passing the impugned order, which has assailed in the present

appeal.

4. A perusal of the material on record including the

impugned order will indicate that there are several contentious

issues and disputed questions of law and facts that would arise for

consideration which would necessarily have to be decided by the

first appellate Court on merits after hearing all the parties. Under

these circumstances, without expressing any opinion on the

merits/demerits of the rival claims, I deem it just and appropriate to

dispose of this petition by directing the first appellate Court to

dispose of the aforesaid appeal in R.A.No.50/2021 on merits in

accordance with law within a period of two [2] months from the next

date of hearing i.e., 26.06.2023 on which date, the appeal stands

posted before the first appeal Court.

It is further directed that till disposal of the appeal by the first

appellate Court, all parties are directed not to alienate, encumber

or create any third party rights over the suit schedule properties.

NC: 2023:KHC:21559 WP No. 5729 of 2023

All rival contentions are kept open and no opinion is

expressed on the same.

Subject to the aforesaid directions, the petition stands

disposed of.

Sd/-

JUDGE

RB