Plaintiff in a pending specific performance suit challenged refusal of temporary injunction restraining the defendant from alienating suit property. The court disposed of the writ petition, directing the trial court to conclude the suit within six months and that the property not be alienated meanwhile.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 20346 OF 2017 (GM-CPC)
BETWEEN:
SRI S NARASIMHA NAIK S/O GANAPATHI NAIK, AGED ABOUT 58 YEARS, R/AT. "MATHRUSHREE", 38 KALTHUR VILLAGE & POST, UDUPI TALUK, UDUPI DISTRICT.
…PETITIONER
(BY SMT: LEELA P. DEVARADIGA, ADVOCATE)
Digitally signed by PAVITHRA N Location: high court of karnataka
AND:
SMT. YASHODA BAI, W/O. LATE. ANANDA NAIK, AGED ABOUT 57 YEARS, R/AT. "MATHRUSHREE", 38 KALTHUR VILLAGE & POST, UDUPI TALUK, UDUPI DISTRICT.
…RESPONDENT
(BY SRI: SOMASHEKAR .T., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 15.11.2014, PASSED ON I.A.II IN O.S.69/2014, PENDING ON THE FILE OF THE PRL. SR. CIVIL JUDGE & CJM, UDUPI AT ANNEX-H AS THE SAID ORDER VOID AB INITIO. QUASH THE M.A.1/15 IMPUGNED JUDGMENT & ORDER DATED 15.3.2017 PASSED BY THE PRL. DISTRICT AND SESSION JUDGE, AT UDUPI, AT ANNEXK AND CONSEQUENTLY GRANT AN ORDER OF THE TEMPORARY INJUNCTION RESTRAINING THE RESPONDENTS FROM ALIENATING, ENCUMBERING OR CREATING ANY 3RD PARTY INTEREST OVER THE SUIT SCHEDULE PROPERTY TO SECURE THE ENDS OF JUSTICE.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Plaintiff in OS.No.69/2014 on the file of the learned Prl.Senior Civil Judge, Udupi is impugning the order dated 05.12.2014 rejecting IA No.2 filed under Order 39 Rules 1 and 2 of CPC and refusing to restrain the defendant from alienating the suit schedule property during the pendency of the suit, Which was confirmed in MA No.1/2015 on the file of the learned Prl.District Judge, Udupi vide judgment dated 15.03.2017.
the petitioner and Sri. Somashekar.T., learned counsel for the respondent.
Court had granted exparte order of temporary injunction restraining the defendant from alienating the property. But
NC: 2024:KHC:2860 WP No. 20346 of 2017
later rejected IA No.2 observing that the plaintiff was not ready and willing to perform his part of the contract and there is delay on the part of the plaintiff in seeking specific performance of the contract. These observations by the trial Court will adversely affect the case of the plaintiff. Moreover, if during the pendency of the suit, defendant alienates the property that will lead to multiplicity of proceedings. The trial Court and the first Appellate Court have not considered these aspects of the matter and therefore, he prays for allowing the petition by setting aside the impugned order.
NC: 2024:KHC:2860 WP No. 20346 of 2017
these facts and circumstances, the trial Court and the first appellate Court rightly rejected the claim of the plaintiff for grant of temporary injunction and accordingly, it is observed that the plaintiff was not ready and willing to perform his part of the contract and it is also observed that the suit must have been barred by limitation. There are no perversity or illegality in the order and judgment impugned here. Therefore, he prays for dismissal of the petition.
NC: 2024:KHC:2860 WP No. 20346 of 2017
In view of the above, I proceed to pass the following:
ORDER
Sd/JUDGE
BH: List No.: 1 Sl No.: 4
1 issue framed by the court
Whether the plaintiff in a specific performance suit should be granted temporary injunction restraining alienation despite rejection by trial and appellate courts.
2 provisions across 2 enactments
Sri S Narasimha Naik
Smt. Yashoda Bai
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
