Smt. Manjula W/O Dayanand Adin Vs Dayanand S/O Jan Adin

DAYANAND S/O, JAN ADIN, AGE: 49 YEARS, OCC: ELECTRICAL ENGINEER, R/O. BASHEEL MASHIN COMPOUND, CHRISTIAN COLONY, GULEDGUDDA, TQ: GULEDGUDDA, DIST: BAGALKOT.

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ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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MANAPPA S/O. JAN ADIN, AGE: 53 YEARS, OCC: AGRICULTURE, R/O. BASHEEL MASHIN COMPOUND, CHRISTIAN COLONY, GULEDGUDDA, TQ: GULEDGUDDA, DIST: BAGALKOT.

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…RESPONDENTS

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(BY SRI. HARISH S. MAIGUR, ADVOCATE FOR R1-R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI QUASHING BY THE IMPUGNED ORDER DTD. 01-04-2024 IN O.S.NO.07/2020 IN DISMISSING I.A.NO.1 FILED

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UNDER ORDER 39 RULE 1 AND 2 PASSED BY COURT OF ADDL. CIVIL JUDGE AND JMFC, BAGALKOT SITTING AT GULEDGUDDA VIDE ANNEXURE-D, IN THE INTEREST OF JUSTICE AND EQUITY; ISSUE WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DTD. 05-12-2024 IN DISMISSING M.A.NO.03/2024 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC, BADAMI, VIDE ANNEXURE-F, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

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The petitioner is before this Court seeking for the following reliefs;

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Issue writ in the nature of certiorari quashing by the impugned order dtd. 01-04-2024 in O.S.No.07/2020 in dismissing I.A.No.1 filed under order 39 rule 1 and 2 passed by court of Addl. Civil Judge And JMFC, Bagalkot Sitting At Guledgudda vide Annexure-D, in the interest of justice and equity.

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Issue writ in the nature of certiorari quashing the impugned order Dtd. 05-12-2024 in dismissing M.A.No.03/2024 passed by the court of Senior Civil Judge And JMFC, Badami, vide Annexure-F, in the interest of justice and equity.”

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The petitioner had filed a suit in OS No.7 of 2020 on the file of the Additional Civil Judge and JMFC.,

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Bagalkot sitting at Guledagudda seeking for awarding of maintenance and to create any charge as regards the right of the petitioner on maintenance amount. In the said suit, I.A.No.1 had been filed by the petitioner under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure seeking for injunction restraining all defendants from transferring one of the properties said to belong to the joint family.

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The said application was opposed on the ground that in a suit in O.S.No.47 of 2016 filed by the sisters of defendant No.1, a compromise had been entered into and there was no subsisting right, title or interest of defendant No.1 in the said property as regards which the reliefs could be sought for.

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The submission of learned counsel appearing for the petitioner is that the said compromise decree has been setup in a collusive manner to defeat the rights of the petitioner, which ought have been taken into account by the trial Court while considering the said application.

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Sri Harish S.Maigur., learned counsel appearing for the respondents No.1 and 2 would submit that the trial Court has rightly rejected the application in as much as there is no subsisting right, title or interest of the defendants in the said property and the compromise having been recorded prior to the filing of the present suit. The said compromise would prevail and further that the sisters not being arrayed as parties in the suit, no order could have been passed in respect of the said suit property.

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Heard Sri Vijayendra Bhimakkanavar., learned counsel appearing for the petitioner and Sri Harish S.Maigur., learned counsel appearing for the respondents No.1 and 2. Perused the papers.

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The suit that was filed in O.S.No.7 of 2020 was for grant of monthly maintenance and creation of charge as regards the said maintenance on the property described in the said application. The property being subject matter of the suit in O.S.No.47 of 2016 wherein, defendant No.1 had given up his right on the

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said property in favour of his sisters, the question of creating any charge as regards the right of defendant No.1 in the said property, would not arise.

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Whether the said compromise in O.S.No.47 of 2016 is a collusive or a fraudulent one, is required to be established by the plaintiff in an appropriate proceedings as and when filed. The compromise in O.S.No.47 of 2016 not being the subject matter of suit in O.S.No.7 of 2020, I am of the considered opinion that the trial Court has rightly rejected the application filed by the petitioner.

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In that view of the matter, no grounds being made out, the petition is dismissed.

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Liberty however being reserved to the petitioner to challenge the compromise and or seek for any reliefs in respect to said compromise in an appropriate proceeding. If such proceedings are filed, the observations made in the impugned order would not come in the way of the said Court dealing with the said proceedings on merits.

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In view of disposal of the writ petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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Sd/(SURAJ GOVINDARAJ)

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AM/List No.: 1 Sl No.: 31

Smt. Manjula W/O Dayanand Adin v. Dayanand S/O Jan Adin

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Smt. Manjula W/O Dayanand Adin v. Dayanand S/O Jan Adin

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