Chandrappa Vs C Vasudeva

S/O LATE THIMMAIAH AGED ABOUT 70 YEARS R/O SUCHITHRA NILAYA BESIDE MANASA GANGOTHRI HIGH SCHOOL MUDALAPALYA, SANJIVINI NAGARA 8TH CROSS ROAD BENGALURU-560092

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VENKATESHAPPA S/O LATE THIMMAIAH AGED ABOUT 68 YEARS R/O MAYYUR AUTO XEROX BELURU ROAD CHIKKAMAGALURU-573201

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RADHAMMA

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W/O BASAVARAJAPPA AGED ABOUT 57 YEARS R/O GOLLARAHALLI KARAGUNDA POST ARSIKERE TALUK HASSAN DISTRICT-573103

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…RESPONDENTS

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(BY SRI. GOPALAKRISHNAMURTHY C.,ADVOCATE)

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THIS W.P. FILED PRAYING TOQUASH THE ORDER AND DECREE DTD.19.3.2020 AT ANNEXURE-J PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND PRL JMFC TARIKERE IN MA NO.19/2018 ALLOWING THE IA NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC IN O.S.NO.120/2018 FILED BY THE R-1 GRANT AN AD-INTERIM ORDER OF STAY THE ORDER DTD.19.3.2020 AT ANNXURE-J PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND PRL JMFC TARIKERE IN MA NO.19/2018.

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NC: 2025:KHC:27992 WP No. 15628 of 2020

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HC-KAR

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking following reliefs:

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i) Quash the order and decree dated 19.03.2020 at Annexure-J passed by the Court of the Senior Civil Judge & Prl.JMFC, Tarikere in M.A.No.19/2018 allowing the I.A.No.1 filed under Order XXXIX Rule 1 and 2 of CPC in O.S. No.120/2018 filed by the respondent No.1 by issuing a Writ of Certiorari.

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ii) Grant such other and further reliefs as are just including costs of this petition in the interest of justice."

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2. Sri Ravi H.K., appearing for the petitioner submits

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that the respondent no. 1 filed a suit for partition and separate possession, claiming to be the joint family property. In the said suit, the respondent no. 1 filed an application for temporary injunction, seeking prayer not to alienate the suit schedule property, which was granted exparte. On appearance the petitioner filed an application for vacating the exparte injunction order which came to be allowed by the trial Court by

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5 - NC: 2025:KHC:27992 WP No. 15628 of 2020

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HC-KAR

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well reasoned order, by recording a clear finding that Item nos.

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2 to 4 are the self acquired properties of the petitioner.

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It is submitted that respondent no. 1 filed an appeal challenging the said order and the Appellate Court exceeded its jurisdiction and incorrectly recorded the finding that the issues with regard to the properties are self acquired or the joint family property are required to be gone into in the pending suit, and directed the petitioner/defendant not to alienate the suit schedule property during the pendency of the suit. It is further submitted that the Appellate Court has not set aside the Order on IA No. 4. Hence, he seeks to allow the petition.

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Per Contra, Sri Gopalakrishna Murthy C., learned counsel appearing for respondent no. 1 supports the impugned order of the Appellate Court and submits that the suit is for partition and separate possession, and if the petitioner alienate the suit schedule property there would be a further complication in the suit and third party interest would come in the way of adjudicating the dispute between the parties. Hence, he seeks to dismiss the petition.

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6 - NC: 2025:KHC:27992 WP No. 15628 of 2020

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HC-KAR

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I have heard the arguments of learned counsel for the petitioner, learned counsel for the respondent meticulously perused the material on record.

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The pleading and material on record indicate that the respondent no. 1 filed a suit in O.S.No.120/2018, seeking relief of partition and separate possession. In the said suit, he filed an application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure seeking temporary injunction against the petitioner not to alienate suit schedule properties during the pendency of the suit. The trial Court considering the prima facie case granted exparte temporary injunction, which came to be vacated on an application filed by the petitioner vide Order dated 03.04.2018.

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Perusal of the records indicate that respondent no. 1 filed an appeal in MA No.19/2018 and the Appellate Court reversed the order of the Trial Court by directing the petitioner not to alienate the suit schedule properties during the pendency of the suit. It is submitted that the trial has proceeded further and is at the concluding stage. The contention of the petitioner is that the petitioner is the father, who has acquired Items 2 to

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NC: 2025:KHC:27992 WP No. 15628 of 2020

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HC-KAR

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4 of the suit schedule properties by way of registered sale deed, which he has produced before the court and they are the self acquired properties. In my considered view, the issue is with regard to, the properties are self acquired or not, which is required to be gone into by the trial Court in a full-fledged trial. At this stage, it may not be appropriate to record any finding with regard to the contentions urged by the parties in this petition.

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Taking note of the fact that the suit is proceeded further and is at the fag end of the trial, I am of the considered view that, without expressing any opinion on the merits of the rival contentions urged by the parties in this proceeding, the interest of justice would be met, if the petitioner is directed not to alienate the suit schedule properties during the pendency of the suit. It is made clear that the observation made by this Court supra, as well as the observation of the Appellate Court in M.A.No.19/2018, and the observation of the Trial Court while vacating the interim order shall not come in the way of the Trial Court in adjudicating the dispute between the parties on its merit.

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HC-KAR

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Learned counsel for the petitioner insists that there may be direction to the trial Court to dispose of the suit. As in view of the injunction order, he is unable to deal with the property. I am of the considered view that no positive mandamus can be issued to the trial Court to dispose of the suit in a time bound manner. However, it is open for the petitioner-defendant no. 5 to move the trial Court for early disposal and the trial Court shall take note of the prayer and consider the same taking note of the pendency of cases before it.

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With the aforesaid observations, I proceed to pass the following :

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ORDER

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i) The writ petition is disposed off.

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ii) The petitioner/defendant no. 5 is directed not to alienate suit schedule property till disposal of the suit.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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HR

Chandrappa v. C Vasudeva

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Chandrappa v. C Vasudeva

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