Allowed

Dr. H. Anuradha v. H. Gangadhar

Telangana HC19 Apr 2021CMA/71/2021

Case brief

AI extract

What is this about?

In a partition suit, appellants challenged the District Judge's dismissal of their temporary injunction application. The High Court allowed the appeal to the extent of setting aside the dismissal, granting injunction for most properties but remitting the issue regarding item No.21 due to disputed ownership status.

What did the court decide?

Set aside impugned order; granted temporary injunction on items 1, 2, 5-20; remitted decision on item 21 to lower court by 30-06-2021.

Dr. H. Anuradha Vs H. Gangadhar — Partition | Telangana HC (2021)

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IN THE HIGH COURT^{FOR THE STATE OF TELANGANA} AT HYDERABAD

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MONDAY,THE NINETEENTH^{DAY OF APRIL} TWO THOUSAND^{ANDTWENTY ONE}

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PRESENT

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THE HONOURABLE^{SRI JUSTICE M.S.RAMACHANDRARAO} AND

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THE HONOURABLE^{SRI JUSTICE T.VINOD KUMAR}

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CIVIL MISCELL^{ANEOUS APPE AL NO: 71oF 2021}

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( Appeal Under Order^{43 Rule 1 R/w' Section 151 of CPC} aggrieved'bytheorderdated2T-01-2020in1'A.No'1401of2016ino.S. Nil ZO ot Z6tO^{on the file of the Court of the Principal District Judge'} Nizamabad. )

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Betwee n:

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1 Dr. H. Anuradha, W/o.^{late H. Daya Kiran,Aged 55 years, Occ Doctor'} nio. flut-f.fo.^qOZ, A-Z-IZZA,^{Pinorama tt/ansion, RenukaEnclave'} Somajiguda, Rajbhavan^{Road, Hyderabad'}

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2 Rahul, S/o. late^{H. Daya Kiran,Aged 31 years, Occ Business'R/o' Flat} i'i". ioz, o-a:iz3B,^{Ca'norama Minsion, Renuka Enclave, Somajiguda'} Rajbhavan Road,^HYderabad.

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H. Ruthu, D/o. late^{H. Daya Kiran,Aged- 31 years, Occ Doctor' R/o'} rrui'-rlo.'^-ioz, a-z-lzl8,^{PanoramaManiion, Renuka Enclave'} Somaiiguda, Rajbhavan^{Road, Hyderabad.}

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...APPELLANTS/^{Petitioners/ Plaintiffs}

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AND

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1 H. Ganqadhar, S/o.^{H. Gangaram, Aged 66 years,Occ Business'Fi/o'} H.rGl s:o-sszii, -orngu tti"tayam, o-pp. Appbrva School, Khaleelwadi' Niza ma bad.

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2 H. Sampath, S/o.^{H. Gangaram,Aged 58 years,Occ Business'R/o} H r.ro s:o-sgzli, Grnga^{Nilavam,6pp. AfporvaSchool, Khaleelwadi'} Niza ma bad.

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3 H. Ravi Raj, S/o. H. Gangaram,^{Aged 56 years-.Occ.Business, R/o'} ffat f.fo. +02, Usha Deluie^{Apartments, tr/otilalNehrunagar, Begumpet'} Hyderabad.

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4 H. Kishan, S/o. Haridaslachaiah,^{Aged 76 years,Occ' Business, R/o'} B-3, Vikrampuri Colony,^{Karkhana'Hyderabad.}

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H. Krishna^{Kumar,S/o Haridas Narsaiah'.Aged,59 years'Occ'}

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" ij;iil;;;. R/o. Fldt r.ro soo,^pooja Place^{tr/otilalNehrunagar'} BegumPet,^HYderabad

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a Haridas Narsaiah,^{S/o Haridas Lachaiah' Aged.Blvears' Occ'} Business,^{Rio. NearrtrtjiiliiJr"p-'irt' suiit*"utt^'in'gar' Nizamabad'}

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H. Sanjay,^{S/o. H. Kjshan, Aged 51 years'Occ Business' R/o'B-3'} ' Vui".p,iii Colony, Karkahana, Secunderabad

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B.H'MaheshKumar,S/o.H.Kishan,Ag-ed4gyears,occ,Business,R/o." ij-i,'Vilii'rprti coronv, karkahana' Secunderabad'

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g.H.PraveenKomar,S/o.H,Kishan,Aged46.years,occ.Business,R/o. " ij-i, viiirrprii cdronv, Karkahana' Secunderabad'

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1O.Smt. H.^{Pushpa,W/o H Kishan' Age^d 67 years'Occ Housewife'R/o'} '" E:1: viilail*p,]ri'cotonv, Karkahana' Secunderabad'

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11 . Smt. Y.^{Suguna,W/o late Y.V'V.Raju, Aged63.years, occ. Housewife,} ' ' ill. i.r.rrl:C-dzzt+, Siin,sar col6nv' Hvderabad'

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Smt. H.^{Saparna,W/o H Krishna H Krishna KrishnaKumar' Aged 48 years' 48 years' years'Occ'}

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Smt. H. H.^{Saparna,W/o H Krishna H Krishna KrishnaKumar' Aged 48 years' 48 years' years'Occ'}

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' E;ij;;;lf;."nio Frut No sciC. iooiu Palace'-Mothilalnasar'^Besumpet' Hyderabad.

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13.The lvlanager,^{Canara Bank'BranchGodown Road' Nizamabad'}

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,.RESPONDENTS/^{Respondents/ Defendants}

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lA NO: 2^{OF 2021}

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Petition under^{Section 151 CPC prayingthat in the circumstances} stateo in irre^{affidavitfiled in support of the fietition, the HighCourt maybe} -lrii,]nction in favour of the Petitioners and oleased to^{grantaa_interim} :ffil ti; H;;;";;"ni., '"titlining the Respondents^{/Defendants'their} aoents. familV member"^{ui". t-ruf,i1g uny sort of alienationof the petition} rJr,"o,.jr"^{pr"i,erties pending disposal of this Appeal'}

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Counsel^{for the Appellants:SRl'SUNIL B GANU}

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Counsel^{for the Respondent NO'2 : SRI T'S' ANAND}

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c o u n se^{r ro r the Res po nd e ntN o'' t.} ;;3:ii;i.'J 3xt[flii;'n:i,]"J" "

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The Court delivered^{the following:Judgment}

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HONOURABLE^{SRI JUSTICEM.S.RAMACHANDRA RAO}

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AND

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HONOURABLE^{SRI JUSTICE T.VINODKUMAR}

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CIVIL MISCE^{LLAN EOUSAPPEALNo.7lof2021}

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JUDGMENT:^{(per Hon'bleSri JusticeM'S' Ramachandra Rao)}

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This Appeal^{is filed challengingthe order dt'27-01-2020in} I.A.No.l40lof20l6ino.S.No.26ol20l6ofthePrincipalDistrict Judge at^Nizarnabad

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2 The appellants^{herein are plaintilts in the suit'}

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They tiled^{the saidsuit against the respondents for partition of} the plaint schedule^{propefties and for allotmentof shares to them and} also for a direction^{to respondentsto pay Rs'15'00'000/-p'a' towards} mesne profits^{from the date ofsuit till date ofdeliveryoftheir shares'}

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In the^{plaint schedule,the appellants havementioned the details} of 2l immoveable^{propertiesand alsomentionedas item No'22' a sum} ofRs.2,4T,05,8g0lsaidtobesurplusamountlyingwiththe respondent^No. l3^{Canara Bank (de1'endantNo'13) after the sale of} properties mentiorled^{at serial No' I I - 14 mentionedat para-4of the} plaint.

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It^{was the contention of the appellantsin the suit that suit} schedule^{propeftiesincluding item No l I to 14 mentionedin para-4 ol} I

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) t,,sR.J & t'v(.J (l.M.A.No.7l of 2021

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the plaint are the^joint family^properties of^{late Gangaram,father-in-} law of appellant No.1 and^grand-father of^{appellantNos.2 and 3 along} with his brothers H.Narasiah and H.Kishan,^{who are respondentNos.4} and 6 and who constitute a^joint family.

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According to the appellants, they are entitled to^8.33o/o shale in this joint family properties. fhey allege that there was mismanagement and misappropriation by 2''d respondent, that certain amounts had been borrowed from the Cartara Bank, Nizamabad^(13th respondent) and default was comnritted u'hich resulted in sale of items-11 to 14 mentioned in para-4 of the plaint and a surplus amount ofRs.2,47,05,890-97 Ps had been received by the 13'h respondent and was lying with it.

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7 . Appellants had filed I.A.No. I 401 of 201 6 in the said suit for an ex parte ad interim injunction restraining the respondents frorn alienating the suit schedule properties.

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Along with the said application, they also filed I.A.No.37 of 2018 under Section 151 C.P.C. for a direction to respondent Nos.1,2, 4,6 and 13 to deposit Rs.2,47,05,890/- sliown as itern No.22 olthe suit schedule properties to the credit of the suit before the Court belorv.

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Counter-affidavit was frled by respondent No.l3 Bank stating that sale had been conducted under the provisions of the SARFAESI

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I I

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-1

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,1SR.J & IVK.J C.M.A.No.7l ol202l

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Act, 2002 and the irenrs u,hich had been mongaged to it had been sold bv it.

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Before the Court below, none of the^{respondents except} respondent No. t 3 filed any counter-affidavit in both the^I.As.

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The Court below then disposed of I.A.No.37 of^{2018 on} 27-01-2020 stating that the properties were sold by^{respondent No.13} under the SARFAESI Act by complying^{with the provisions of the} said Act and there was no willful violation of^{the orders granted by} the Court below on ll-ll-2016 restraining^alienation of^the properties.

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It then observed also in its order that in view of^{orders in} I.A.No.37 of 20 18, I.A.No. l40l of 2016^{had becomeinfructuous as} the properties which are subject matter of the schedule^{in the said I.A.} were sold by 13th defendant.

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Having said so, it passed a two line order in^{I.A.No.1401of} 2016 as under:

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"Counters of Rt to RtO and Rl2 are not filed. In view of^the orders in IA No.37 of 2018, this^{petition is dismissed".}

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THTi PITEST|N'I'^(],\I,;.

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Challenging the said order, this^appeal is^{filed by the} appel lants/plai nti l'fs.

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t J l

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J::

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MSR,J & ]'VK,J C.M.A.No.7l of202l

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It is the contention ofthe learned counsel for appellants that the Court below was under a mistaken impression that 13th defendant/l3th respondent had sold all the propefties which are mentioned in the schedule in I.A.No.1401 of 2016, and that the sarne is incorrect.

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It is pointed out by leamed counsel fbr appellants thar only properties mentioned at SI.No. I I to 14 at para-4 of the plaint were sold by the l3th defendant/13'h respondent, and the Court below was under a mistaken impression that all the properries menrioned in the plaint schedule had been sold and this has vitiated the order passed by the Court below.

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Sri Deepak Bhattacharjee, learned Senior Counsel appearing for Sri Dishit Bhattacharjee, learned counsel for 13th defendant/l3s respondent states that 13s respondent had s<lld item Nos.3, 4, 13 and 14 also which are mentioned in I.A. schedule/plaint schedule.

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This fact is not disputed by the leamed counsel flor appellants or leamed counsel for 2"d respondent.

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Learned counsel for 2n'l respondent, horvever, has filed counteraffidavit taking a plea that item Nos.3, 4. 13. 14 and 2l are selt acquired properties of2nd respondent, and though item Nos.3, 4, 13 and 14 have been sold by l3th resporrdent Bank, item No.2l, being his self-acquired property, no temporary injunction restraining its alienation can be granted by this court. He further states that he has

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MSR,J & TVK,J C.M.A.No.7l ol202l

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no objection if terrporarf injr.rnction is granted restraining sale of^item Nos. l, 2, 5 to 12, I 5 to 20 of the plaint schedule.

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We rnay point out that no colrnter-a lfi^dav it^{had been filed by} 2nd respondent in the Court below claiming that item No.21 of^the plaint schedule is his seltacquired propefty. Therefore, the Court below had no occasion to consider this aspect of the^matter.

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21 . None of the other respondents have appeared^{before us and} made any submissions other than respondent^{Nos.13and 2.}

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In this view olthe rratter. we set aside the^{orderdt.27-01-2020} passed in I.A.No.l40 I of 2016 in O.S.No.26 of^{2016and grant} telnporary injunction rcstraining the resportdents^{from alienatingItem} Nos. l, 2, 5 to 10, ll, 12 and l5 to 20 of the^{plaint schedule} properties/scl.redule in I.A.No. I 401 o1'20^I 6

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As regards item No.2 I of the plaint schedule,^{since thereis a} dispute as to whether it is ancestral^{property or self-acquired property,} and since this aspect has not been considered^{by the Court below, to} that extent only, I.A.No.1401 of 2016^{is remitted back to the Court} below to decide whether the appellants^{are entitled to injunction} restraining its alienation by 2nd respondent.^{This exerciseshallbe} completed by the Court below by 30-06-2021. Both^partiesare permitted to adduce evidence in support of their^{respective claims in} regard to item No.2l of the^property.

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ii6ii

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MSR.J & TVK,J C.M.A.No.7l of202l

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The Civil Miscellaneous Appeal is allowed to the^extent

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indicated above. No costs.

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As a sequel, miscellaneous petitions pending if any in this

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Appeal, shall stand closecl.

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Sd/.K.SREENIVASA RAO JOINT REGISIRAR //TRUE COPY// .:-,. SECTION OFFICER

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The Principal District^{Judge, Nizamabad.}

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One CC to SRl.^{SUNIL B GANU Advocate} [OPUC]

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One CC to SRl.^{T.S. ANAND, Advocate} [oPUc]

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One Cc to Sri Dishit^{Bhattacharjee, Advocate (oPUC)}

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Two CD Copies

,<uL

*---

HIGH COURT

DATED:19^10412021

JUDGMENT

GMA.No.71^{ot 2021}

t E r€
o
c)
2g APR 2021
"d

I
:,li

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ALLOWING^{THE CMA-}

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WITHOUT COSTS.

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tlt,n

Dr. H. Anuradha v. H. Gangadhar

Case brief

What is this about?

What did the court decide?

Dr. H. Anuradha v. H. Gangadhar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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