The High Court of Karnataka allowed the appellants to withdraw the regular first appeal and the interlocutory application filed before the Trial Court. The court reserved liberty for the appellants to pursue other available remedies without prejudice.
Appeal and I.A.No.2 set aside as withdrawn with liberty to pursue other remedies.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1270 OF 2023 (EXCISE)
BETWEEN:
Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA
NC: 2023:KHC:41074 RFA No. 1270 of 2023
BANASHANKARI 2nd STAGE, BENGALURU -560070
…APPELLANTS
(BY SRI G. KRISHNAMURTHY, SENIOR COUNSEL FOR SRI SANDEEP LAHIRI, ADVOCATE)
AND:
…RESPONDENTS (BY SRI. ABHINAV R., ADVOCATE FOR SRI N. GOWTHAM RAGHUNATH.,ADVOCATE C/R1)
THIS RFA IS FILED UNDER SECTION 96 ORDER XLI RULE 1 OF CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE THE ORDER DATED 04.03.2023 PASSED ON THE APPLICATION FILED UNDER ORDER XXI RULE 97 OF THE CODE OF CIVIL PROCEDURE, 1908 IN EXECUTION PETITION NO.560/2015 BY THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-16) AT BANGALORE AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2023:KHC:41074 RFA No. 1270 of 2023
JUDGMENT
Learned counsel for appellant has filed a memo seeking
withdrawal of the appeal. The said memo is read as under:
“ The appellants have filed a application under Order XXI Rule 97 r/w section 151 of CPC in Execution Petition No.560/2015 filed by the respondents seeking execution of the judgment and decree passed in suit O.S.No.3620/2005 for perpetual injunction. The Trial Court dismissed the application on merits. The said order was challenged in the W.P.No.10319/2023 and at the request of the appellant hererin, this Hon’ble Court was permitted the convert the same as the aforesaid regular first appeal.
The appellant has now realized that the application itself was not maintainable before the Trial Court in an injunction suit. In view of the same, the appellant prays that this Hon’ble Court may be pleased to permit the appellant to withdraw the I.A.No.2 filed under Order XXI Rule 97 referred to above before the Trial Court and consequently set-aside the order passed thereon on merits with liberty to the appellant to pursue the Misc No.1259/2023 to recall the order O.S.No. 8678/2014 pending on the file of City Civil Court, Bangalore and all other available remedy in the interest of justice”.
2. Learned senior counsel for the appellants
submits that the appellants may be permitted to withdraw
the present appeal as well as the interlocutory application
I.A.No.2 filed by them before the Trial Court by reserving
liberty in favour of the appellant to take recourse to such
NC: 2023:KHC:41074 RFA No. 1270 of 2023
remedies as available in law. The said memo is opposed by
the learned counsel for the respondent/decree holder.
that the same arises out of an application I.A.No.2 filed by the appellant under Order 21 Rule 97 of CPC in the instant E.P.No.560/2015 which was filed by the respondent/decree holder to execute and implement a decree for permanent injunction. It is needless state that in execution proceedings arising out of a decree for permanent injunction, an application under Order 21 Rule 97 of CPC would not be maintainable having regard to the specific language employed in the provisions contained in Order 21 Rules 97 to 104 of CPC.
to such other remedies as available in law. If the
NC: 2023:KHC:41074 RFA No. 1270 of 2023
appellants take recourse to such other remedies as available in law and institute appropriate proceedings before any Court/forum, respondent would be entitled to contest the same in accordance with law.
Subject to the aforesaid liberty and directions, the appeal stands disposed off as withdrawn without expressing any opinion on the merits/demerits of the rival contentions.
Sd/JUDGE
RHS
2 issues framed by the court
Whether the regular first appeal filed by the appellants seeking withdrawal of the appeal and intra-court remedy should be permitted.
Whether the memorandum filed by the appellants to withdraw the appeal and application I.A.No.2 with liberty to pursue other remedies should be allowed.
3 provisions across 1 enactments
Sri A. Naveen @ Yash
Sri. K.C Raghunath @ Rangayana Raghu
Smt. R Pushpalatha
Smt. K C Sowbhagya
Sri. G N Rajashekara Naidu
Sri. G Bhogendra
S.R. Krishna Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
