Disposed

Sri Manjunatha v. Appaiah Since Dead by His Lrs Sri Munendra Kumar

Karnataka HC22 Nov 2022WP/18726/2022

Case brief

AI extract

What is this about?

Writ petition under Article 227 challenging an impugned order allowing sale of property. The Single Judge held the Civil Court must ensure future sale complies with Section 7 of the Partition Act 1893 and CPC. Petition disposed of with liberty to the petitioner to call Civil Court for modification.

What did the court decide?

Petition disposed with liberty to file certified order before Civil Court to call upon it to modify its order dated 10.08.2022 to ensure sale in accordance with Section 7 of the Partition Act, 1893 an

Sri Manjunatha Vs Appaiah Since Dead by His Lrs Sri Munendra Kumar — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF NOVEMBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.18726/2022 (GM-CPC)

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BETWEEN :

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SRI MANJUNATHA AGED ABOUT 42 YEARS S/O LATE PANDU @ PANDURANGA AGED ABOUT 42 YEARS R/A NO.2/4, 1^ST FLOOR 9^TH CROSS, ANNAYAPPA LANE COTTONPET BENGALURU-560053.

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... PETITIONER

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(BY SRI. MUSHTAQ AHMED, ADVOCATE SRI. ABDUL KHADAR, ADVOCATE)

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AND :

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APPAIAH SINCE DEAD BY HIS LRS

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SRI MUNENDRA KUMAR S/O LATE APPAIAH AGED ABOUT 50 YEARS,

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SRI VENKATESH SINCE DEAD NO LRS

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MR MUNILAKSHMI D/O LATE APPAIAH AGED ABOUT 55 YEARS,

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SMT SARASWATHI D/O LATE APPAIAH AGED ABOUT 52 YEARS

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SMT SHASHIKALA D/O LATE APPAIAH AGED ABOUT 53 YEARS

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ALL ARE R/A C/O MAHENDRA KUMAR R/AT NO. 2/3, 9^TH CROSS PREVIOUSLY IT WAS 1^ST CROSS ANNAYAPPA LANE NEAR COTONPET BENGALURU-560053.

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GOVINDAPPA SINCE DEAD HIS LRS

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SMT MUNIYAMMA SINCE DEAD W/O GOVINDAPPA

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SRI B G VENKATESH SINCE DEAD NO LRS

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SMT PAPAMMA W/O LATE DASAPPA D/O LATE MAISTRY MUNIYAPPA AGED ABOUT 55 YEARS R/A NO.24/73, 12^TH CROSS BHOVIPALYA MAHALAKSHMIPURAM BENGALURU-560086.

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SRI ASHWATHA @ ASHWATHAPPA S/O MAISTRY MUNIYAPPA SINCE DEAD BY HIS LRS

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SMT JAYAMMA W/O LATE ASHWATHA @ ASHWATHAPPA AGED ABOUT 62 YEARS

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SRI A RAJU S/O LATE ASHWATHA @ ASHWATHAPPA AGED ABOUT 55 YEARS,

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SWAMY S/O LATE ASHWATHA @ ASHWATHAPPA AGED ABOUT 50 YEARS

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MURUGA S/O LATE ASHWATHA @ ASHWATHAPPA AGED ABOUT 45 YEARS

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SL. NO. 6 TO 9 ARE R/A NO.2/4, 1^ST FLOOR 9^TH CROSS, ANNAYAPPA LANE COTTONPET BENGALURU-560052.

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PANDU @ PANDURANGA S/O LATE MAISTRY MUNIYAPPA SINCE DEAD BY HIS LRS

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SMT LALITHA W/O LATE PANDU @ PANDURANGA SINCE DEAD

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SMT CHAYA DEVI @ P J DEVI D/O ASHWATHA @ ASHWATHAPPA W/O JAGANNATH AGED ABOUT 70 YEARS R/A DHANALAKSHMI ROAD HINDUPUR TOWN ANANTHAPURA DISTRICT(AP).

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... RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH

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ANNEXURE-E IN FDP NO.92/2005 ORDERS PASSED ON 10.08.2022 BY THE XV ADDL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is brought on record as one of the respondents in the final decree proceedings in FDP No.92/2005 on the file of the XV Additional City Civil and Sessions Judge, Bengaluru (for short, 'the civil Court '). The petitioner has impugned the civil Court's impugned order dated 10.08.2022 which reads as under:

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"Memo filed by the petitioner is hereby allowed.

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The petitioner is permitted to sell the property in order to get share as per the Preliminary Decree by appointing the Commissioner to conduct auction sale.

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For suggesting the name of Commissioner."

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The learned counsel for the petitioner submits that the civil Court could not have permitted sale of the property based on an earlier Commissioner's report, but the learned counsel does not dispute that the decree in O.S.No.3257/1984 remains unchallenged and that the petitioner does not dispute that the suit schedule property is not partible. The learned counsel also does not dispute that the petitioner, who asserts he is willing to purchase share of the others in terms of the Preliminary Decree, has not taken any steps except stating that there is an effort for settlement with such share holders.

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Lastly, the learned counsel for the petitioner submits that the civil Court could not have permitted the petitioner in the final decree proceedings to sell the property and if there is any sale, it has to be in accordance with the procedure as contemplated under Section 7 of the Partition Act, 1893 read with relevant

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provisions of CPC. There is considerable force in this submission and this Court must interfere and dispose of the petition observing that the civil Court must moderate its impugned order to ensure that the subject property is brought to sale in accordance with the procedure contemplated in terms of the aforesaid provisions. Hence, the following:

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ORDER

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The petition stands disposed of with

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liberty to the petitioner to file a certified copy of this order before the civil Court and calling upon the civil Court to modify its order dated 10.08.2022 to ensure that the subject property is brought to sale in accordance with

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the procedure as aforesaid.

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Sd/JUDGE

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SA/Ct:sr

Sri Manjunatha v. Appaiah Since Dead by His Lrs Sri Munendra Kumar

Case brief

What is this about?

What did the court decide?

Sri Manjunatha v. Appaiah Since Dead by His Lrs Sri Munendra Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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