Sri N Manjunath Vs Sri B Narayanaswamy

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF JUNE, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 8257 OF 2025 (CPC) BETWEEN:

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SRI N MANJUNATH

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SON OF LATE NANJAPPA, AGED ABOUT 52 YEARS, RESIDING AT JALADIGERE VILLAGE, YEDIYUR HOBLI, KUNIGAL TALUK, TUMAKURU DISTRICT, PINCODE - 572 142.

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA

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SRI. P. SURESH KUMAR, SON OF LATE PUTTARANGAIAH, AGED ABOUT 56 YEARS, RESIDING AT NO. 134, CHANNENAHALLI VILLAGE, MAGADI MAIN ROAD, BENGALURU SOUTH TALUK, PINDODE - 560 091

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(BY SRI. PUNITH C., ADVOCATE)

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AND:

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SRI B NARAYANASWAMY SON OF LATE DODDABYTAIAH, AGED ABOUT 68 YEARS, RESIDING AT JALADIGERE VILLAGE, YEDIYUR HOBLI, KUNIGAL TALUK, TUMAKURU DISTRICT,

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…APPELLANTS

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

HC-KAR

PIN CODE: 572 142.

…RESPONDENT

(BY SRI. HARISHA A.S., ADVOCATE)

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THIS MFA IS FILED U/O. 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 13.10.2025 PASSED ON I.A.NO. IX IN R.A.NO.136/2021 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, ALLOWING IA NO.IX FILED U/O. 39 RULE 1 AND 2 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the defendants

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questioning the impugned order dated 13.10.2025 passed in R.A.No.136/2021 so far as it relates to IA No.9 filed by the plaintiff/respondent herein under Order XXXIX Rule 1 and 2 read with Section 151 of CPC.

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The facts of the case are as follows.

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The respondent was the plaintiff in O.S.No.76/2020,

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filed before the Senior Civil Judge and JMFC, Kunigal. In the said suit, the appellant No.1 was the sole defendant. In the said suit, the sole defendant filed IA No.3 under

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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HC-KAR

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Order VII Rule 11 (d) of CPC for rejection of the plaint for the reasons stated therein.

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Upon contest, the said application came to be allowed vide dated 21.09.2021 partly and the Court directed the plaintiff therein to value the property as per the guidelines issued by the State of Karnataka and to file

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a fresh valuation failing which the plaint would stand automatically rejected. Thereafter, the matter was adjourned several times for the plaintiff to file the fresh valuation slip, which was not filed by the plaintiff, and in view of the non-filing of the valuation slip as ordered by the trial Court, the plaint came to be rejected vide order dated 08.10.2021.

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Aggrieved by the said order of rejection of the plaint, the plaintiff preferred an appeal in R.A.No.136/2021 to set aside the said order of rejection of

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the plaint and restore the suit. During the pendency of the regular appeal, the plaintiff filed IA No.9 under Order XXXIX Rule 1 and 2 read with Section 151 of CPC to be

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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HC-KAR

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decided along with the main appeal i.e. R.A.No.136/2021.

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The appellant herein was the defendant who filed objections to the said application. Upon contest, the regular appeal came to be allowed vide order dated 13.10.2025. The impugned order of the trial Court dated 08.10.2021 came to be set aside. The matter was remanded back to the trial Court with a direction to provide an opportunity to both parties to be heard on payment of court fees and valuation and then to proceed with the case in accordance with law. Simultaneously, the trial Court allowed IA.No.9 filed by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of CPC and passed the following order

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"Thereby the respondent no.2 is hereby restrained from alienating the suit property to anybody till disposal of the suit."

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HC-KAR

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It is this order on IA.No.9 filed under Order

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XXXIX Rule 1 and 2 read with Section 151 of CPC that is questioned by the appellant who was the original defendant before the trial Court. While filing the regular appeal, respondent No.2 was included, who was not a party in the original suit.

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It is the vehement contention of learned counsel for the appellant that the impugned order passed on IA No. 9 by the appellate Court is opposed to law, is perverse, arbitrary and illegal and the same requires to be set aside. It is further contended by learned counsel for the appellant that while disposing of the said application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, no proper adjudication has been made as contemplated for deciding an application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC and no reasons are provided, and so also no findings to the effect of there being a prima facie case, balance of convenience, or for that matter the hardship that would be caused.

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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HC-KAR

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It is further contended by learned counsel for

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the appellant that the appellate Court has simultaneously allowed the application filed by the plaintiff in the regular appeal, despite passing a conditional order for remand, which is again perverse and illegal and arbitrary. It is further contended by learned counsel for the appellant that initially when the suit was dismissed on the application filed by the appellant/ defendant under Order VII Rule 11 (d) read with Section 151 of CPC, a conditional order was passed for properly valuing the suit and for payment of the Court fees, which in fact was not paid, whereas the application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC came to be allowed by the appellate Court, without fulfilling the condition of payment of deficit court fee. Therefore, he contends that the impugned order on the said application is illegal, perverse and not sustainable in law.

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Learned counsel for the appellant further contends that he is not aware after the remand as to

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HC-KAR

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whether the plaintiff in the original suit has in fact paid the necessary court fees to the satisfaction of the Court as the same is yet to be decided with regard to the valuation of the Court fee that is paid, and in the meanwhile, the said application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC is allowed till the disposal of the suit, again, which is perverse and arbitrary.

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Learned counsel for the appellant further contends that while allowing the said application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, the appellate Court has not decided the three essential requirements for consideration of the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, namely the prima facie case, balance of convenience and hardship that would be caused to the aggrieved party. On these grounds, he seeks to set aside the order passed on IA.No.9 in specific.

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Per contra, learned counsel appearing for the respondent/plaintiff vehemently contends that there is no

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illegality, perversity or arbitrariness in the order passed by

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the regular appeal court by granting an order restraining the appellant herein, who is the defendant before the trial Court from alienating the suit property till disposal of the suit.

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Learned counsel for the respondent/plaintiff contends that the appellate Court has heard both the parties of the application and, after being satisfied with the contentions put forth by the respondent/plaintiff has come to a conclusion that there would be hardship and inconvenience if there is any alienation made during the pendency of the suit and has accordingly allowed the application, which does not call for interference, as the suit is yet to be decided on merits. Therefore, he contends that there is no illegality or perversity in the said impugned order so far as it relates to IA.No.9.

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I have heard learned counsel for the appellant

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and learned counsel for the respondent, who are the defendant and the plaintiff in the original suit proceedings.

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HC-KAR

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Admittedly, there is no dispute to the fact that

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the original suit, which was initially filed by the plaintiff in O.S.No.76/2020 came to be dismissed by virtue of an order passed by the trial Court for rejection of the plaint, the conditional order with a direction to the plaintiff to file the fresh valuation slip and pay the necessary court fee which came to be challenged by the plaintiff in the R.A.No.136/2021.

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It is also not in dispute that an application came to be filed by the respondent/plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of CPC to restrain the appellant/defendant from alienating the suit property till disposal of the suit. It is also not in dispute that the appeal came to be allowed and the matter is remanded to the trial Court for fresh consideration by providing an opportunity to the respondent/plaintiff and the defendant to hear on payment of court fee and valuation and then proceed in accordance with law.

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HC-KAR

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When this is the situation, the regular appeal

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Court has allowed the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC filed by the respondent /plaintiff. In the normal course, when a regular appeal is filed, the appellate Court ought to have remanded the matter and directed the parties to agitate the matter for deciding the application filed under Order 39 Rule 1 and 2 read with Section 151 of CPC or ought to have provided proper reasons and findings with regard to the three necessary ingredients to decide an application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, namely, prima facie case, balance of convenience, and the hardship that would be caused to the aggrieved party, whereas the regular appeal Court has not only allowed the appeal and remanded the matter, but has also allowed the application filed under Order XXXIX Rule 1 and

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2 read with Section 151 of CPC filed in IA No. 9 when the main order itself was an order of remand to the trial Court to provide an opportunity to both parties to hear on

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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payment of Court fee and valuation and then to proceed in accordance with law.

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It is now stated across the bar that the Court fee is paid by the learned counsel appearing for the respondent/plaintiff, which is disputed by the learned counsel for the appellant/ defendant. Again, we are getting back to the stage of what the earlier order was passed in O.S.No.76/2020 as to whether the proper court fee and valuation are made good by the respondent/plaintiff, which is the primary requirement for the original suit to proceed further and thereafter, for consideration of any other interim applications by any Court for that matter.

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In the normal course it is a settled fundamental principle of law that certain applications that requires to be filed before the Court of first instance are necessarily required to be filed in the very same Court and not in the appellate court. No doubt it is true that the appeal against the civil suit is a continuation of the original suit proceedings. But in the present case on hand, the original

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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suit proceedings had terminated against which a regular

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appeal was filed by the plaintiff for setting aside that order. It is a matter on record that the regular appeal came to be allowed. The matter is remanded with a direction to the respondent/plaintiff to make good the payment of court fee and the parties to be heard on the correctness of payment and valuation of the court fee to proceed further.

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In the meanwhile, allowing the application

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under Order XXXIX Rule 1 and 2 read with Section 151 of CPC on IA.No.9 may not have been the correct procedure to be followed by the appellate Court in R.A.No.136/2021. In my opinion, the appellate Court ought to have remitted the matter for consideration of IA.No.9 before the trial Court upon being satisfied with the payment of court fee which was the remand made for, and on being satisfied with the valuation thereafter the trial Court could have

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decided the application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC. It is also seen that in the

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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impugned order passed by the appellate Court while allowing IA No.9 filed under order XXXIX Rule 1 and 2

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read with Section 151 of CPC the only reasons provided are at para No.16 which reads as under:

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" Further the appellant has filed I.A.No.IX U/o.399 R.1 and 2 of CPC seeking temporary injunction against the respondent No.2 as he is attempting to alienate the suit property. The same was opposed by the other side. Hence looking into the nature of the suit if the suit property is alienated then it amount to multiplicity of proceedings and the very purpose of filing the suit will become infructuous. Hence in the interest of justice if the injunction order is issued no hardship would be caused to the other side. Hence under these circumstances the I.A.No.IX filed u/o.39 R.1 and 2 of CPC is allowed on without costs."

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It is relevant to mention that upon careful perusal of this paragraph, there is no proper finding or reasons provided with regard to prima facie case, balance of convenience, or the hardship that would be caused, except stating that if the suit property is alienated, it would amount to multiplicity of proceedings and the suit would itself become infructuous. In my humble opinion,

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the appellate Court has committed an error in allowing the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC and has decided it in advance without the respondent/plaintiff satisfying the requirement of the remand i.e., payment of the court fees and valuation and satisfaction of the court with regard to the correct court fees and the valuation to proceed further with the suit.

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In the present facts and circumstances of the case, I find that the order passed is perverse, illegal and arbitrary and the matter ought to have been sent back to the trial Court to decide the application IA.No.9 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC.

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It is also seen that while allowing the application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, the appellate Court has passed the order of restrainment of alienation of the suit property till

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the disposal of the suit. Thereby, there is no scope for further modification of the order as the appellate court has already decided the application under Order XXXIX Rule 1

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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and 2 read with Section 151 of CPC even before coming to the satisfaction of the trial Court to decide on the payment of court fee and valuation. Under the circumstances, this Court is of the opinion that the matter requires interference so far as IA.No.9 is concerned, filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC. Accordingly, I pass the following order.

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ORDER

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The appeal is allowed.

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The impugned order dated 13.10.2025

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passed by the VI Additional District and Sessions Judge, Tumakuru, in RA No. 136/2021 to the extent of allowing IA.No.9 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC is hereby set aside.

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The application- IA.No.9 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC shall be decided by the trial Court in accordance with law by providing suitable opportunities to both the parties.

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NC: 2026:KHC:27485 MFA No. 8257 of 2025

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It is also relevant for the trial Court to primarily come

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to a conclusion as to whether the respondent/plaintiff has made good the payment of court fee and the Court is satisfied with regard to the sufficiency of the Court fee and the valuation made therein.

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In view of the urgency shown by learned counsel for the respondent/plaintiff that alienations are made subsequent to filing of the regular appeal in R.A.No.136/2021, the trial Court shall decide the application within 15 days from the date of receipt of copy of this order.

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Until the trial Court decides the said application, IA.No.9 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, the appellant/defendant shall maintain status quo so far as it relates to the suit schedule property.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK, List No.: 1 Sl No.: 31

Sri N Manjunath v. Sri B Narayanaswamy

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Sri N Manjunath v. Sri B Narayanaswamy

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