Partly allowed

K. S. Mamatha v. Rathnamma

Karnataka HC9 Feb 2024WP/52114/2017

Case brief

AI extract

What is this about?

Petitioners challenged two orders in an execution/final decree proceeding arising out of a partition suit, one drawing a second preliminary decree and the other allotting item No.1 to a defendant to validate an auction sale. The High Court declined to disturb the first order as under appeal, but set aside the second as premature.

What did the court decide?

Order dated 03.10.2017 on IA No.3 set aside and IA No.3 dismissed; challenge to order dated 26.09.2016 on IA No.2 dismissed, liberty given to pursue relief in RFA 1083/2018.

K. S. Mamatha Vs Rathnamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:5600 WP No. 52114 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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WRIT PETITION NO. 52114 OF 2017 (GM-CPC)

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BETWEEN:

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K. S. MAMATHA

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W/O. K.G. SIDDARAJU, 48 YEARS, R/AT 767, APARNA 4^TH MAIN, PJ EXTENSION DAVANAGERE.

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KAVITHA

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W/O. N.J. SATHISH AGED 50 YEARS, R/AT. OPP: NANJAPPA HOSPITAL KUVEMPU ROAD, SHIMOGA CITY - 577 201

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…PETITIONERS

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Digitally signed by PAVITHRA N Location: high court of karnataka

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(BY SMT: CHITHARA B.P.,

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SRI: KARUMBAIAH .T.A., ADVOCATES)

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AND:

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RATHNAMMA

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W/O B C INDUDHAR, 69 YEARS.

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B.I. PRASHANTH S/O INDUDHARA 46 YEARS.

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BOTH ARE RESIDING AT ANJANEYA TEMPLE ROAD

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NC: 2024:KHC:5600 WP No. 52114 of 2017

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SAGAR TOWN - 577 401 SHIMOGA DISTRICT.

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NARASIMHA NAIKA BEGNGRE RTD. BANK OFFICIAL AGED ABOUT 63 YEARS, R/AT J.C. ROAD, SAGAR TOWN - 577 401

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CHANDRAKANTH NAIKA BENGARE S/O SUBBARAYA VASUDEVA NAYAK BENGARE AGED ABOUT 60 YEARS.

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NAGENDRA NAYAK BENGARE S/O. SUBBARAYA VASUDEVA NAYAK BENGARE AGED ABOUT 58 YEARS.

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PANDURANGA NAYAK BENGARE S/O SUBBARAYA VASUDEVA NAYAK BENGARE AGED ABOUT 55 YEARS.

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SRIKANTH NAYAK BENGARE S/O SUBBARAYA VASUDEVA NAYAK BENGARE AGED ABOUT 52 YEARS.

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RADHAKIRSHNA NAYAK BENGARE S/O SUBBARAYA VASUDEVA NAYAK BENGARE AGED ABOUT 58 YEARS.

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RESPONDENTS NO.3 TO 8 ARE RESIDING AT J.C. ROAD, SAGAR TOWN - 577 401.

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…RESPONDENTS (BY SRI: UMESH MOOLIMANI, ADVOCATE FOR SRI: S.V. PRAKASH, ADVOCATE FOR R3 TO 8 R1 & 2 - H/S - V/O DT.25/6/21)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ANNEX-D THE ORDER DATED 26.9.2016 PASSED BY THE ADL.

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3 - NC: 2024:KHC:5600 WP No. 52114 of 2017

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SR. CIVIL JUDGE SAGAR ON I.A.2 FILED BY R-3 IN FDP NO. 5/2014 AND ALSO ANNEX-G THE ORDER DATED 3.10.2017 PASSED ON I.A.3 IN FDP NO. 5/2014 AND REJECT ITEM NO. 2 AND 3 FILED BY R-3 AND ETC.,

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

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ORDER

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The petitioners herein are impugning the order dated 26.09.2016 allowing IA No.2 in FDP No.5/2014 on the file of the learned Addition Senior Civil Judge and JMFC., Sagar (hereinafter referred to as 'the trial Court' for brevity), filed by respondent No.3 under Section 151 of CPC and directing to draw second preliminary decree determining the share of respondent Nos.1 and 2 and the order dated 03.10.2017 passed on IA No.III filed by respondent Nos.3 to 8 under Section 151 of CPC and directing allotment of Item No.1 of the petition schedule property to the share of respondent No.2 so as to validate the sale of the property purchased by respondent No.3 to 8 in public auction.

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Heard Smt. Chithara B.P., learned counsel for the petitioners and Sri.Karambaiah.T.A., learned counsel for the respondent. Perused the material on record.

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NC: 2024:KHC:5600 WP No. 52114 of 2017

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Learned counsel for the petitioners submitted that

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petitioners as plaintiffs filed the suit OS.No.32/2011 seeking partition and separate possession. The said suit came to be decreed allotting 1/4th share each in favour of plaintiffs. Therefore, half of the share in the schedule property was allotted to the share of the plaintiffs. There were in all three items of properties. Pursuant to the preliminary decree drawn by the trial Court. The petitioners have filed FDP No.5/2014 and the same is pending consideration. Defendant Nos.3 to 8 being the auction purchasers from defendant No.2 challenged the preliminary decree by preferring RFA No.1083/18, the same is pending consideration.

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Learned counsel further submitted that in the meantime, respondents have filed IA Nos.2 and 3 under Sections 151 of CPC and both the applications were allowed by the final decree Court directing to draw secondary preliminary decree by modifying the shares of each parties and also allotting item No.1 of the plaint schedule properties to the share of defendant No.2 so as to validate the sale of the said property in the public auction in favour of defendant Nos.3 to 8.

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5 - NC: 2024:KHC:5600 WP No. 52114 of 2017

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Since the final decree is not drawn in respect of all the other properties, the impugned order passed by the trial Court is being challenged here. The impugned order passed by the final decree Court only in respect of one item of properties and also modifying the shares of the parties without considering the preliminary decree in respect of other items of properties, it has worked out hardship to the petitioner. Therefore, they pray for setting aside the impugned order in the interest of justice.

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Per contra, learned counsel for the respondent opposing the petition submitted that RFA No.1083/2018 is preferred impugning the preliminary decree passed by the trial Court. Defendant Nos. 3 to 8 are the auction purchasers of item No.1 from defendant No.2. Therefore, they have filed applications IA Nos.2 and 3 for relief as sated above and the final decree Court rightly allowed both the applications. Since RFA No.1083/2018 is pending consideration before this Court, the writ petition may await the final judgment in regular first appeal and therefore prays for passing appropriate orders. Alternatively, learned counsel submits that there is no illegality or perversity in the order passed by the final decree Court and prays for dismissal of the petition.

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NC: 2024:KHC:5600 WP No. 52114 of 2017

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The undisputed facts of the case are that the

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petitioners herein as plaintiffs filed the suit OS.No.32/2011 got the decree with specific share allotted in their favour. Thereafter, the petitioners filed FDP No.5/2014. In the meantime, defendant Nos.3 to 8 being auction purchasers of item No.1 from defendant No.2 preferred an appeal RFA No.1083/2018, which is still pending consideration. In the meantime, the defendant Nos.3 to 8 have filed IA Nos.2 and 3 under Section 151 of CPC praying for modification of shares allotted and for allotment of item No.1 to the share of respondent No.2 so as to validate the sale of the property in the public auction in their favor. Both the applications were allowed. It is not in dispute that RFA No.1083/2018 filed by these respondents pending consideration before this Court. In the meantime, they have filed IA Nos.2 and 3 and got the relief in their favour.

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Even though second preliminary decree was came to be passed by modifying the shares of each of the parties, admittedly the preliminary decree is under challenge in RFA No.1083/2018. I do not find any reason to interfere with the same at this stage and hence, order on IA No.2 which

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NC: 2024:KHC:5600 WP No. 52114 of 2017

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culminated into second preliminary decree which is subject matter of RFA No.1083/2018 is not taken up by this Court for consideration. The petitioners are at liberty to seek appropriate relief in that regard in the pending Regular First Appeal.

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By passing order on IA No.3, the final decree Court allotted item No.1 to the share of respondent No.2 to validate the share of the said property in public auction in favour of respondent Nos.3 to 8. When there are other items of properties, the final decree Court was not justified in preferring to pass the order only in respect of item No.1 keeping the final decree proceeding pending in respect of other items of properties. Therefore, I find considerable force in the contention taken by the learned counsel for the petitioners. The only option available for the respondents being defendant Nos.3 to 8 who claim to be the auction purchaser of item No.1 in the auction sale under Sarfaesi Act , is to get the RFA No.1083/2018 disposed of on merits. The final decree Court can consider the preliminary decree passed by the trial Court in respect of all the

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three immovable properties and the share in the business to draw the final decree. Hence, I am of the opinion that the

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NC: 2024:KHC:5600 WP No. 52114 of 2017

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impugned order dated 03.10.2017 passed on IA No.3 is liable

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to be set aside.

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Accordingly, I proceed to pass the following:

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ORDER

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i. Writ petition is allowed in-part .

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ii. The petition challenging the order dated 26.09.2016 in FDP No.5/2014 allowing IA No.2 filed Under Section 151 is dismissed. It is made clear that the petitioners are at liberty to seek appropriate relief in this regard in the pending RFA 1083/2018.

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iii. Petition impugning the order dated 03.10.2017 in FDP No.5/2014 allowing IA No.3 filed under Section 151 is set aside. Accordingly IA No.3 is dismissed.

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Sd/JUDGE

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List No.: 1 Sl No.: 7

K. S. Mamatha v. Rathnamma

Case brief

What is this about?

What did the court decide?

K. S. Mamatha v. Rathnamma

Case brief

What is this about?

What did the court decide?

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