In writ petitions challenging a lower appellate court's temporary injunction order in a partition suit, directed trial court to expedite disposal of a preliminary issue regarding bar by limitation within three months.
Directed trial court to expedite consideration of preliminary issue on limitation and dispose within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF AUGUST 2014
BEFORE
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.8696-8700 OF 2014 (GM-CPC)
BETWEEN:
Represented by his G.P.A.Holder Smt. Lakshmi Anand Nayari, Aged about 60 years, Wife of Sri. Ananda Nayari, Resident of R.No.203, Building N.A-13, Axcer Road, Yoginagara, Borivilli West, Mumbai 400 092, Maharashtra.
2
Son of Late Kusuma Nayarthi, Resident of Garadi Bettu, Chantharu, Brahmavara Taluk, Udupi District – 576 213. 3. Smt. Sheelavathi, Aged about 39 years, Daughter of Late Kusuma Nayarthi, Resident of Garadi Bettu, Chantharu, Brahmavara Taluk, Udupi District – 576 213.
AND:
3
Shimoga District – 577 432.
All the respondents 1 to 3 in the 1st appellate court are represented By their GPA Holder Sri. B. Somanatha Nayari, Aged about 38years, Son of Krishna Nayari, Resident of Chanthar Village, Brahmavara Taluk, Udupi District – 576 213.
4
Brahmavara Taluk, Udupi District – 576 213.
Respondents 5 and 6 are Residents of Bavikeri Road, Megarahalli Post, Thirthahalli Taluk, Shimoga District – 577 432.
…RESPONDENTS
(By Shri. S.R. Hegde Hudlamane, Advocate for Respondent Nos.1 to 3
Vide Court order dated 1.3.2014 notice to respondent nos. 4 to 6 dispensed with)
These Writ Petitions filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 17.12.2013 passed in M.A.No.41/2012 by the learned Principal Senior Civil Judge, Udupi, produced and marked as AnnexureG.
These Writ Petitions coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:
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O R D E R
Heard the learned Counsel for the petitioners. The petitioners are said to be the defendants in a suit for partition. The mother of the plaintiffs was said to be the sister of petitioner no.1 herein. The plaintiffs had filed an application for temporary injunction seeking restraint on the petitioners not to alienate the suit properties and that application was rejected after contest by the trial court. However, in an appeal, the lower appellate court has set aside the order of the trial court and has granted an order of temporary injunction. It is that which is questioned in the present petitions.
out that the very suit was not maintainable as it is hopelessly barred by limitation. In that, Article 110 of the Schedule to the Limitation Act, 1963 provides a period of limitation of 12 years for a suit by a person excluded from joint family property to enforce a right to a share therein. Since the suit is filed apparently 19 years after the respondents - plaintiffs were
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aware of their exclusion, the suit is barred by limitation which has been overlooked by the lower appellate court. In any event, such a contention having been raised in the written statement, a preliminary issued would necessarily have to be framed by the trial court and the same would have to be tried forthwith. Therefore, notwithstanding that there is an order of injunction granted by the appellate court, if the suit itself can be disposed of on the ground of limitation, it would be in the interest of justice that this issue is taken up forthwith and decided one way or the other.
Consequently, while disposing of the petitions, the trial court is directed to expedite the consideration of the preliminary issue as regards the bar of limitation and dispose of the issue within a period of three months, if not earlier, from the date of receipt of a copy of this order.
Sd/JUDGE
nv
2 issues framed by the court
Whether lower appellate court should have quashed the temporary injunction or directed expedited trial on limitation
Whether the suit for partition is barred by limitation under Article 110 of the Limitation Act
Sri. Ananda Nayari and Others
Sri. Seetharama Nayari and Others
ANAND BYRAREDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
