High Court allowed writ petition challenging order in Final Decree Proceedings. Court held trial Court exceeded decree scope in allotting property. Impugned order quashed and matter remanded for rehearing.
Writ petition allowed. Impugned order set aside. Matter remanded to Final Decree Proceedings Court to reconsider application after hearing.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MARCH, 2022
BEFORE
THE HON’BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.21639 OF 2021 (GM-CPC)
BETWEEN
PETITIONERS NO.1 TO 3 ARE R/O BUGUDANAHALLI VILLAGE, BELLAVI HOBLI,
TUMAKURU TALUK AND DISTRICT-572107
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R/AT C/O GORAKAR KEMPANNA, CHELUR VILLAGE, GUBBI TALUK, NOW AT C/O SIDDAMMA, BUGADANAHALLI, BELLAVI HOBLI, TUMAKURU TALUK AND DISTRICT.
...PETITIONERS
(BY SRI M B CHANDRACHOODA, ADVOCATE)
AND
SRI B K LOKESHA S/O B S KEMPANNANJAPPA AGED 22 YEARS R/O BUGUDANAHALLI VILLAGE, BELLAVI HOBLI, TUMAKURU TALUK AND DISTRICT-572107.
….RESPONDENT
(NOTICE TO RESPONDENT SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 08TH NOVEMBER, 2021 PASSED ON I.A.NO.5 FILED UNDER SECTION 3 AND 6 OF THE PARTITION ACT READ WITH SECTION 151 OF CPC IN FDP NO.24 OF 2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, VIDE ANNEXURE-H AND ETC.,
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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is preferred by the legal representatives of the defendant No.7 in the suit OS No.24 of 2007 on the file of the II Additional Senior Civil Judge and JMFC, Tumakuru challenging the order dated 08th November, 2021 passed on IA.V in Final Decree Proceedings NO.24 of 200 (Annexure-H).
the respondent No.1 herein, who is the plaintiff in OS No.24 of 2007 on the file of the trial Court, filed suit seeking relief of partition and separate possession of his half share in the suit schedule property and the said suit came to be decreed in part. The operative portion of the order reads as under:
“ ORDERS
The suit of the plaintiff is hereby partly decreed with costs.
The plaintiff is entitled for partition and separate possession of his 1/3rd share out of 2.37½ / 18th share of
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the deceased 2nd defendant in the suit schedule properties by metes an bounds.
Since, the sale of suit schedule item No.2 property in favour of the 7th defendant is not for family necessity and benefit, the said sale transaction dated 05.08.2004 is not binding on the share of the plaintiff in the suit schedule properties. In the said facts and circumstances and considering the pleadings of the 7th defendant and his L.Rs while effecting the partition of the suit schedule properties in terms of the aforesaid orders, the suit schedule item No.2 property shall be allotted to the share of defendants NO.3 to 5 under the principles of equity. ”
No.24 of 2019 before the trial Court to execute the preliminary decree passed in OS No.24 of 2007. In the said Final Decree Proceedings, the petitioner/respondents 7(a) to (c) therein, filed application under Section 3 and 6 of the Partition Act read with Section 151 of the Code of Civil Procedure seeking allotment of item No.2 to respondents 3 to 5 as per the judgment and decree in OS No.24 of 2007 and the said application came to be rejected by the trial Court by order dated 08th November, 2019. Being aggrieved by the same, Legal representatives of defendant No.7 have preferred this writ petition.
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observed that while effecting partition of suit schedule property, the schedule item No.2 shall be allotted to the share of defendants 3 to 5. Looking into the judgment and decree referred to above, the observation made by the trial Court in Final Decree Proceedings passed in OS No.24 of 2019 is not permissible under law and therefore, I am of the view that the impugned order dated 08th November, 2021 is liable to be set aside. Accordingly, it is set aside. The learned Judge in Final Decree Proceedings No. 24 of 2019 is directed to reconsider the application filed by respondents 7(a) to (c) afresh, after affording an opportunity of hearing to all the parties and pass appropriate orders in accordance with law. Hence, I pass the following:
O R D E R
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affording an opportunity of hearing to the parties within an outer limit of six months from the date of receipt of certified copy of this Order.
Sd/JUDGE
lnn
3 issues framed by the court
Whether the trial Court in Final Decree Proceedings exceeded the scope of the judgment and decree passed in the original suit while determining allotment of property items.
Whether the observation in the impugned order regarding allotment of schedule item No.2 to specific defendants is legally sustainable when contrary to the operative decree.
Whether the writ petitioner seeking quashing of the order dated 08th November, 2021 with direction to reconsider the application is justified.
3 provisions across 3 enactments
Smt. Siddamma w/o Late Jayadevappa
Sri Muniraj s/o Late Jayadevappa
Sri Ananda s/o Late Jayadevappa
Smt. Manjamma w/o Kumar
Writ Petition
E.S. Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
