Karnataka High Court
Smt Asha Shenoy vs Sri Sannayya Shetty on 27 June, 2023
Bench: Jyoti Mulimani
-1-
NC: 2023:KHC:22216
RSA No. 786 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.786 OF 2022 (INJ)
BETWEEN:
SMT. ASHA SHENOY
W/O K.BALAKRISHNA SHENOY,
AGED ABOUT 57 YEARS,
R/AT DWARAKA,
ANANTHANAGARA, 2ND STAGE,
MANIPAL, UDUPI - 576 201.
BY HER GPA HOLDER AND HUSBAND
SRI K.BALAKRISHNA SHENOY.
...APPELLANT
(BY SRI. AJITH A. SHETTY., ADVOCATE)
AND:
1. SRI SANNAYYA SHETTY
S/O HIRIYANNA SHETTY
AGED ABOUT 72 YEARS,
Digitally signed by
R/AT NEAR MARKET, HEBRI VILLAGE,
THEJASKUMAR N KARKALA TALUK, UDUPI - 576 112.
Location: HIGH
COURT OF
KARNATAKA 2. HEBRI VYAVASAYA SEVA SAHAKARI BANK LTD.,
HEBRI VILLAGE AND POST,
KARKALA TALUK, UDUPI - 576 112,
BY ITS MANAGER.
3. SALE OFFICER,
SUPERVISIOR OF CO-OPERATIVE SOCIETIES,
S.C.D.C.C. BANK LTD, KARKALA BRANCH,
KARKALA TALUK, UDUPI-576 104.
4. RECOVERY OFFICER
CO-OPERATIVE SOCIETIES,
S.C.D.C.C. BANK LTD.,
-2-
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RSA No. 786 of 2022
KARKALA TALUK,
MANGALORE-576 104.
5. SRI.GANGADHAR SHETTY
S/O SHIVARAM SHETTY,
AGED ABOUT 57 YEARS,
R/AT BARSA BETTU,
MUDRADY VILLAGE AND POST,
KARKALA TALUK, UDUPI - 576 104.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.Ajith Anand Shetty., learned counsel for appellant has
appeared through video conferencing.
2. This is an appeal from the Court of Senior Civil
Judge and ACJM at Karkala, Udupi.
3. For the sake of convenience, the status of parties
shall be referred to as per the ranking before the Trial Court.
4. The suit of the plaintiff in the Trial Court is for a
permanent injunction restraining the defendants No.1 to 4,
their men, servants, agents and all persons claiming through or
under them from selling the suit 'A' schedule properties by
holding public auction or otherwise for the recovery of the loan
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RSA No. 786 of 2022
amount allegedly due to second defendant from the first
defendant till the final disposal of the dispute in
O.S.No.112/2006 on the file of Civil Judge (Sr.Dn), Karkala.
After the service of the suit summons, defendants
appeared through their counsel. The defendant No.4 filed a
detailed written statement and contended that the suit is
barred under Section 70 and Section 125 of the Karnataka Co-
operative Societies Act, 1959 and Rule 41 of Karnataka Co-
operative Society Rules, 1969. Among other grounds fourth
defendant prayed for dismissal of the suit.
5. Based on the above pleadings, the Trial Court
framed issues and Preliminary Issues 4 & 5 were framed with
regard to jurisdiction of the Civil Court to entertain the suit and
maintainability of the suit.
The Trial Court considered the Preliminary Issues and
ultimately dismissed the suit on the ground that the Court has
no jurisdiction to entertain the suit to grant the reliefs as
claimed by the plaintiff. Aggrieved by the Order of the Trial
Court on preliminary issues, the plaintiff preferred an appeal
before the First Appellate Court. On appeal, the First Appellate
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Judge confirmed the order passed by the Trial Court on
Preliminary Issues 4 & 5. Hence, this Regular Second Appeal is
filed by plaintiff under Section 100 of CPC.
6. Sri.Ajith Anand Shetty., learned counsel for
appellant has urged several contentions and submitted that the
appeal may be admitted by framing substantial questions of
law.
7. Heard, the contentions urged on behalf of the
appellant and perused the order passed by the Trial Court on
preliminary Issues and also the Judgment & Decree of the First
Appellate Court.
8. The issue revolves around the maintainability of the
suit in view of bar under Section 70 and Section 125 of the
Karnataka Co-operative Societies Act, 1959 (for short 'the Act')
and Rule 41 of the Karnataka Co-operative Societies Rules,
1960.
The Trial Court while answering Preliminary Issues 4 & 5,
has concluded that the suit is one for bare injunction and the
subject matter of the suit is against the Co-operative Society.
Hence, it has been concluded that the suit is clearly barred
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under Section 70 & Section 125 of the Act and also Rule 41 of
Karnataka Co-operative Societies Rules, 1960. On appeal, the
First Appellate Court has confirmed the order of the Trial Court
on the Preliminary Issues. In my opinion, the findings on the
Preliminary Issues 4 & 5 regarding non-maintainability of the
suit before the Civil Court is justified. Since there is a bar under
the Provisions of the Karnataka Co-operative Societies Act,
1959 the plaintiff could not have initiated an action before the
Civil Court. I find no grounds to interfere with the Order passed
by the Trial Court and the Judgment & Decree of the First
Appellate Court.
9. No substantial questions of law arises for
consideration. Accordingly, the Regular Second Appeal is
dismissed at the stage of admission itself.
Sd/-
JUDGE
TKN
