IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL NO.5631 OF 2014 (CPC) Between:
1. Dr. K.V. Chidananda D/o. late Kurunji Venkataramana Gowda Aged 60 years Venkatesha Nilaya Srirampet, Sullia D.K. District – 574 239.
2. Dr.K.V. Renuka Prasad S/o. late Kurunji Venkataramana Gowda Aged about 57 years Venkatesha Nilaya Srirampet, Sullia D.K. District – 574 239. …Appellants (By Sri. K. Srihari, Advocate) And:
Smt. Govardhini Jayakumar Thotambailu W/o. late Dr. Jayakumar Thotambailu Aged about 55 years No.6234, Steinway Drive Jamesville New York – 13078, USA. …Respondent (Sri M.C. Ravikumar, Advocate) This MFA is filed under Section 43 Rule 1(r) of CPC against the order dated 16.04.2014 passed on I.A.No.III in O.S.No.145/2013 on the file of the Senior Civil Judge, Madikeri, allowing I.A.No.III filed u/o. 39 Rule 1 & 2 of CPC.
This MFA coming on for Admission, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the defendants in O.S.No. 145/2013 on the file of the Senior Civil Judge, Madikeri. The defendants have assailed the order passed by the trial Court on I.A.No.3 filed under Order 39 Rule 1 and 2 of CPC restraining them from alienating the suit schedule property till the disposal of the suit.
2. Heard the learned counsel for the appellants.
3. The respondent herein has filed a suit for partition. She has made an application for grant of temporary injunction to restrain the defendants from alienating the suit schedule properties till disposal of the suit. It is the contention of the appellants that there was a partition in the family on 22.12.1972 and some of the properties were acquired after the partition took place. The trial Court has observed that the specific contention taken by the defendants can be appreciated only after recording evidence and no opinion can be expressed at the time of disposing of the application under Order 39 Rule 1 and 2 of CPC. It is also observed that the plaintiff is staying at America and defendants are taking care of the suit schedule properties and in order to maintain the schedule properties, they may require funds and therefore they can be permitted to raise loan from Nationalised Bank. With these observations, the trial Court allowed the application, restraining the defendants from alienating the suit schedule properties, however, the defendants are permitted to borrow loan from Nationalised Bank by creating mortgage over the suit schedule properties.
4. I do not think that the trial Court has committed any error in passing an order like this. It is now submitted by the learned counsel for the defendants/appellants that some of the properties are required to be sold to meet the expenses of the educational institutions and therefore, the impugned order is coming in the way. The learned counsel for the respondent submits that the impugned order is so clear that it has permitted the defendants to raise loan by creating charge over the properties and therefore there is no need to interfere with the impugned order.
5. In the circumstances like this, I do not think there is any need to pass any order by setting aside the impugned order. If the defendants are in need of money to run the educational institutions, they can raise loan. In case it wants to sell some of the items of the suit properties, they are always at liberty to make such application before the trial Court. If such an application is filed, the trial Court can consider it and pass appropriate order taking into consideration the circumstances that may be put forward in the application. I do not think that there are good grounds to interfere with the impugned order. Appeal is dismissed.
SD/- JUDGE Mgn*