Karnataka High Court
Sri Shambhu U Shetty vs Smt Yashoda N Rai on 4 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:406
MFA No. 963 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 963 OF 2022 (CPC)
BETWEEN:
SRI. SHAMBHU U SHETTY,
S/O LATE B. UMANATH SHETTY,
AGED ABOUT 57 YEARS,
R/AT "KESHAVA SADANA"
BEHIND S.D.M. LAW COLLEGE,
KODIALBAIL,
MANGALURU - 575 003 (DK)
...APPELLANT
(BY SRI. M. SUDHAKAR PAI, ADVOCATE)
AND:
1. SMT. YASHODA N RAI,
W/O N.T. RAI,
Digitally signed
by SHARANYA T AGED ABOUT 72 YEARS,
Location: HIGH RESIDING BEHIND CITY HOSPITAL,
COURT OF
KARNATAKA KADRI, MANGALURU - 575 003 (DK).
2. SMT. VISHALA K SHETTY,
W/O KARUNAKAR SHETTY,
AGED ABOUT 61 YEARS,
DOOR NO.8-125/35,
DATHA NAGAR,
BIKARNAKATTTA,
KULASHEKARA POST,
MANGALURU - 575 005(DK).
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MFA No. 963 of 2022
3. SMT. GEETHA B SHETTY,
W/O G. BALAKRISHNA SHETTY,
AGED ABOUT 55 YEARS,
R/AT P.L. TEMPLE ROAD,
NEAR BAJAL TELEPHONE EXCHANGE,
YEKKUR, MANGALURU - 575 007(DK).
4. MR. KESHAVA U SHETTY,
S/O LATE B. UMANATH SHETTY,
AGED ABOUT 59 YEARS,
R/AT KESHAVA SADANA,
BEHIND S.D.M LAW COLLEGE,
KODIALBAIL, MANGALURU - 575 003(DK).
5. SMT. PRAJNA,
D/O LATE SMT. RAMA S NAIK,
AGED ABOUT 38 YEARS.
6. MR. PRASHANATH,
S/O LATE SMT. RAMA S NAIK,
AGED ABOUT 36 YEARS.
RESPONDENTS 5 AND 6 ARE
R/AT ADYAR DOTA,
ADYAR POST,
MANGALURU - 575 007(DK).
...RESPONDENTS
(BY SRI. RAKESH KINI, ADVOCATE FOR C/R2;
R1, R3, R4, R5, R6 - SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC,1908 AGAINST THE ORDER DATED 07.1.2022 PASSED ON
I.A. NO.1 IN O.S.NO. 84/2020 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,
DAKSHINA KANNADA, ALLOWING I.A. NO.1 FILED UNDER
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MFA No. 963 of 2022
ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF
CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel appearing for appellant and
learned counsel for respondents.
2. The prayer in respect of the Impugned Order is that
without any application the Trial Court has committed error in
directing the plaintiff to deposit rentals collected every month
from the lease and the same is beyond the jurisdiction, since
no such prayer is made before the Trial Court and the Trial
Court ought not to have granted such relief without any
application. Counsel also brought to the notice of this Court
the Interim Order granted by this Court on 09.02.2022, making
observations of the said portion of the Order is beyond the
jurisdiction.
3. Per contra, learned counsel appearing for
respondents submits that now he has filed separate application
with separate a prayer that is I.A.No.2. and also the appellants
herein have filed an I.A. before the Trial Court , i.e., I.A.No.3,
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not to consider the said application, since the matter is ceased
off before the High Court.
4. Having heard the counsel for appellants and also
the counsel for respondents and also having perused the I.A.'s,
which are filed before the Trial Court, prayer is only limited for
the purpose to restrain the plaintiff from alienating, leasing,
mortgaging, transferring or in any way dealing with the
scheduled property during the pendency of the case. The Trial
Court while allowing the application, further directed to deposit
the rent, when no such prayer was made in I.A.No.1 and when
there is no prayer with regard to depositing the rent is
concerned, Trial Court ought not have given such direction and
ought to have considered the prayer, which has been made in
I.A.No.1. Hence, the Trial Court exceeded its jurisdiction and
there is and force in the contention of the appellant's counsel.
5. The counsel appearing for respondents also made
the submission that a fresh I.A. has been filed and the same is
pending before the Trial Court, i.e., I.A.No.2 and when a
separate application is filed, the Trial Court ought to have
considered the same in accordance with the law. Hence, the
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Impugned Order in respect of the portion that the plaintiff shall
deposit the rentals collected every month is set aside by
allowing this appeal.
6. The Trial Court is directed to dispose off the
I.A.No.2 in accordance with law within two months from today.
Sd/-
JUDGE
NJ
CT:SNN
