Karnataka High Court

Sadashivaiah vs Manjulamma on 6 January, 2025

                                         -1-
                                                       NC: 2025:KHC:113
                                                   WP No. 19128 of 2017




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 6TH DAY OF JANUARY, 2025

                                      BEFORE
             THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                  WRIT PETITION NO. 19128 OF 2017 (GM-CPC)
            BETWEEN:

            1.    SADASHIVAIAH
                  AGED ABOUT 75 YEARS,
                  S/O LATE KURIGUDDE GOWDA
                  THIGALANAHALLI
                  SHETTIKERE HOBLI
                  CHIKKANAYAKANAHALLI TQ
                  TUMAKURU DISTRICT-572 101

            1A.   SIDDARAMAKKA
                  AGED ABOUT 65 YEARS
                  W/O LATE T.G.SADASHIVAIAH


            1B.   T.S. SUDHAKAR
                  AGED ABOUT 42 YEARS
                  S/O LATE T.G.SADASHIVAIAH
Digitally
signed by   1C.   T.S. SHEKAR
SUVARNA T         AGED ABOUT 41 YEARS
                  S/O LATE T.G.SADASHIVAIAH
Location:
HIGH        1D. T.S.PARASHURAM
COURT OF        AGED ABOUT 39 YEARS
KARNATAKA       S/O LATE T.G.SADASHIVAIAH

            1E.   T.S.PUSHPA
                  AGED ABOUT 37 YEARS
                  S/O LATE T.G.SADASHIVAIAH

                  ALL SL.NOS. 1(A) TO (E) ARE
                  RESIDENTS OF THIGALANAHALLI
                  CHIKKANAYAKANAHALLI TALUK
                  TUMAKURU DISTRICT-572 101
                                                           ...PETITIONERS
            (BY SRI. M VINEYA KEERTHY, ADVOCATE)
                                -2-
                                               NC: 2025:KHC:113
                                         WP No. 19128 of 2017




AND:

1.   MANJULAMMA
     AGED ABOUT 53 YEARS,
     W/O MAHADEVAIAH

2.   MAHADEVAIAH
     AGED ABOUT 63 YEARS,
     S/O LATE KURIGUDDE GOWDA

     BOTH RESIDENT OF
     THOREMAVINAHALLI
     KASABA HOBLI,
     TURUVEKERE TALUK
     TUMAKURU DISTRICT-572 101
                                                 ...RESPONDENTS
(BY SRI.B.R.RAGHAVENDRA, ADVOCATE FOR R1
    R2- SERVED AND UNREPRESENTED)

     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DATED 10.3.2017 PASSED BY THE LEARNED SR. CIVIL
JUDGE AND JMFC, CHIKKANAYAKANAHALLI IN EX. APPEAL NO. 1/16
AT ANNEXURE-H.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:      HON'BLE SMT. JUSTICE LALITHA KANNEGANTI


                         ORAL ORDER

The present writ petition is filed questioning the order

passed in Ex.A.No.1/2016 dated 10.03.2017 by the Senior Civil

Judge and JMFC, Chikkanayakanahalli, whereby the Trial Court

had dismissed the appeal filed by the petitioner herein.

2. The petitioner herein is an objector and the brother

of the JDR. The respondent herein, who is the DHR, has filed a

NC: 2025:KHC:113

suit for maintenance and also sought for charge over the suit

schedule properties. It is the case of the objector that the suit

item Nos.1 and 3 properties are purchased by him from the

DHR even prior to filing of the suit. After filing of the suit the

plaintiff/DHR had filed an I.A. under Order 1 Rule 10(2) of CPC

to implead the objector as a proposed defendant to the suit.

Objections were filed by the objector who is the petitioner

herein and I.A. filed by the plaintiff/DHR was dismissed.

Thereafter, by judgment and decree dated 20.10.2012, the suit

was decreed whereby, the husband is directed to pay monthly

maintenance of an amount of Rs.1,000/- during the lifetime of

the plaintiff from the date of the suit and there shall be a

charge on all the schedule properties for recovery of

maintenance amount. Thereafter, in the execution proceedings

when the sale proclamation was done, at that point of time, the

petitioner herein has come up before the Trial Court by filing

his objections. Ex.P.No.3/2013 came to be dismissed on

29.07.2016. That was carried in Ex.A.No.1/16 and the

Appellate Court had dismissed the said appeal.

3. While dismissing the appeal, the Appellate Court

had observed that it is not disputed that the appellant and JDR

NC: 2025:KHC:113

are the real brothers and the suit item Nos.1 and 3 are their

ancestral properties and DHR is the wife of JDR. Though the

PW1 in his cross examination has deposed that they were not

aware about the filing of the suit in O.S.No.171/2007 by the

DHR against the JDR but, the appellant who has appeared

before the Trial Court had filed the objection to the application

filed by the JDR under Order 1 Rule 10(2) of CPC. The Trial

Court had also observed that the petitioner herein has

contended that he is not a necessary party and accordingly, the

application has been dismissed and against the said order, the

petitioner herein has not taken any steps and he has not

challenged the said order. Further, with regard to the

contention that steps should have been taken in respect to the

other properties, the Trial Court had given a finding that no

person can insist the DHR to take steps only against the

particular items of the execution petition and the DHR cannot

be forced to first exhaust remedy by taking steps against other

properties and the Trial Court has come to the conclusion that

there is no grounds and accordingly, dismissed the appeal.

Aggrieved thereby the petitioner/objector is before this Court.

NC: 2025:KHC:113

4. Learned counsel appearing for the petitioner/

objector submits that when the Trial Court had dismissed the

I.A. that is filed by the respondent herein under Order 1 Rule

10 of CPC. The Trial Court has given a finding that the

petitioner is not a proper and necessary party to the suit. The

Trial Court ought not to have created charge for the properties

that are purchased by the petitioner. It is stated that the Trial

Court has rejected the application stating that there are other

properties and there is no necessity to implead the petitioner

herein. It is further submitted that though there are 7 items in

the suit schedule, but the DHR has chosen to file the execution

petition in respect to the properties which are purchased by the

petitioner herein. He submits that both the Courts without

considering the case of the petitioner in it's proper perspective,

had dismissed the same.

5. Learned counsel appearing for the respondent/DHR

submits that the petitioner has not questioned the judgment

and decree that is passed nor the application that was

dismissed by the Trial Court that was filed by the respondent

herein under Order 1 Rule 10 of CPC. It is submitted that it is

for the DHR to decide how he will get the decree executed and

NC: 2025:KHC:113

the objector cannot insist on the mode of the execution and the

Trial Court had rightly dismissed the petition. He submits that

there are no reasons to interfere with the order impugned.

6. Having heard the learned counsels on either side,

perused the material available on record. In the suit schedule,

there are 7 items. Item Nos.1 and 3 according to the petitioner,

they are purchased by him much before filing of the suit and

when the plaintiff therein wanted to implead this petitioner,

that came to be dismissed and remained unchallenged. He also

draws the attention of the Court to the particular order where

the I.A. filed under Order 1 Rule 10 of CPC is dismissed and the

observation that he is not a proper and necessary party and

it is also observed that there are some other properties. The

submission of the learned counsel for the respondents that the

order that is passed by the Trial Court rejecting an application

under Order 1 Rule 10 of CPC ought to have been questioned

by the petitioner has no legs to stand. When a charge is

created in respect of the properties that were purchased by

him, the petitioner being aware of such a judgment and decree

that was passed, as the JDR happens to be his brother, he has

not taken any steps to question the said judgment and decree

NC: 2025:KHC:113

passed by the Trial Court. The contention that the DHR ought

to have taken steps for execution in respect of the other

properties, leaving his properties, even that submission has no

legs to stand and this Court is not able to appreciate the same.

It is the prerogative of the DHR to take steps in whatever

manner he wants to execute the decree and the JDR cannot

insist. The objector ought to have questioned the said

judgment and decree as far as creating a charge over the

properties that were purchased by him much prior to the suit.

In that view of the matter, this Court do not find any reasons to

interfere with the impugned order. Accordingly, this Court is

passing the following:

ORDER

i. Accordingly, the writ petition is disposed of by

giving liberty to the petitioner to question the

judgment and decree dated 20.10.2022 within a

period of two months from the date of receipt of

the copy of the order.

ii. The interim order that is granted by this Court

whereby the attachment of item Nos.1 and 3 of

NC: 2025:KHC:113

the schedule property is stayed, will continue for

a period of two months from the date of receipt

of copy of the order.