IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.14050 OF 2015 (GM-CPC) BETWEEN:
1. SMT GOWRAMMA W/O NAGARJA, D/O LATE MUNIYAPPA, AGED ABOUT 51 YEARS, R/AT ATTIBELE VILLAGE, KASAB HOBLI, DEVNAHALLI TLAUK, BANGALORE RURAL DISTRICT.
2. SMT.ANASUYAMMA W/O VENKATESH, D/O LATE MUNIYPPA, AGED ABOUT 35 YEARS, R/AT KURUBARAPET, HOSKOTE TOWN, BANGALORE RURL DISTRICT. … PETITIONERS (BY SRI SIDDAMALLAPPA P.M., ADVOCATE) AND:
1. SMT NAGAMMA W/O LATE MUNIYPPPA, AGED ABOUT 73 YEARS, R/AT BUDIGERE ROAD, BEHIND COURT COMPOUND, DEVANAHALLI TOWN.
2. SRI BEERAPPA S/O LATE MUNIYAPPA, AGED ABOUT 41 YEARS, R/AT BUDIGERE ROAD, BEHIND COURT COMPOUND, DEVANAHALLI TOWN.
3. SRI.DEVARAJA S/O LATE MUNIYAPPA, AGED ABOUT 37 YEARS, R/AT BUDIGERE ROAD, BEHIND COURT COMPOUND, DEVANAHALLI TOWN.
4. SMT.JAYAMMA W/O LATE SOMASHEKAR, AGED ABOUT 45 YEARS, R/AT BUDIGERE ROAD, BEHIND COURT COMPOUND, DEVANAHALLI TOWN-562 110.
5. SMT.RATHNAMMA W/O BASKAR, AGED ABOUT 27 YEARS, R/AT GANGANAHALLI VILLAGE, KASABA HOBLI, ANEKAL TALAUK, BANGALORE URBAN DISTRRICT.
6. MASTER BHARATH S/O LATE SOMASHEKAR, AGED ABOUT 19 YEARS, R/AT BUDIGERE ROAD, BEHIND COURT COMPOUND, DEVANHALLI TOWN.
7. SRI.Y.K.CHANDRASHEKAR S/O M.KRISHNAPPA, AGED ABOUT 44 YEARS, R/AT PRASHANTHANAGAR, DEVANAHALLI TOWN.
8. SRI.S.SUCHINDRAMURTHY S/O SIDDAPPA, AGED ABOUT 54 YEARS, R/AT BEHIND BUS STAND, GIDDABHAGILLU ROAD, 15TH WARD, 4TH DIVISION, DEVANAHALLI TOWN.
9. SRI.S.SATHISH KUMAR S/O LATE SHANKARANARAYANA SETTY, AGED ABOUT 50 YEARS, R/AT NAGARATHRAPET, DEVANAHALLI TOWN.
10. SRI.HARISH KUMAR S/O LATE SHANKARANARAYANA SETTY, AGED ABOUT 47 YEARS, R/AT NAGARATHARAPET, DEVANHALLI TOWN.
11. SRI.N.KRISHNAPPA S/O NANJAPPA, AGED ABOUT 65 YEARS, R/AT GANIGARAPET, 4TH WARD, DEVANAHALLI TOWN.
12. SMT.H.SHARADAMMA W/O CHANDRASHEKARAIAH, AGED ABOUT 73 YEARS, R/T SHILPAKALA ROAD, DEVANAHALLI TOWN.
13. SRI DASAPPA S/O LATE GOPALA SETTY, AGED ABOUT 69 YEARS, R/AT NAGARATHARAPET, DEVANAHLLI TOWN.
14. SMT.PAPAMMA W/O VEKATESHAPPA AGED ABOUT 51 YEARS, R/AT MARLUBAGILYU BEEDI, DEVANHLLI TOWN.
15. SRI.SUBRAMANI S/O LATE KRISHNAPPA, AGED ABOUT 49 YEARS, R/AT MARLUBAGILU BEEDI, DEVANAHALLI TOWN.
16. SMT.SARASWATHI W/O LAKSHMIPATHI, AGED ABOUT 38 YEARS, R/AT WARD NO.22, SHANTHINAGAR, BEHIND COURT, DEVANAHALLI TOWN.
17. SRI.LAKSHMIPATHY S/O SRI.VENKATARAMAIAH, AGED ABOUT 43 YEARS, R/AT WARD NO.22, SHANTHINAGAR, BEHIND COURT, DEVNAHALLI TOWN.
18. SMT.PREMA W/O SHIVAKUMAR, AGED ABOUT 31 YEARS, R/T WARD NO.22, SHANTHINAGAR, BEHIND COURT, DEVANAHLLI TOWN.
19. SRI.A.P.VENKATESH BABU S/O LATE A.V.PUTTARAJASETTY, AGED ABOUT 56 YEARS, R/AT SRI VASAVI TEMPLE ROAD, NEAR CHOUK, DEVANAHALLI TOWN.
20. SMT.PUSHPALAKSHMI D/O LATE A.V.PUTTARAJASETTY, AGED ABOUT 47 YEARS, R/AT GOODUR VILLAGE, NELLUR DISTRICT, ANDHRA PRADESH.
21. SRI.A.P.SATHYNARAYANA S/O A.V.PUTTARAJA SETTY, AGED ABOUT 47 YEARS, R/T SRI VASAVI TEMPLE ROAD, DEVANAHALLI TOWN, BANGALORE RURAL DISTRICT. … RESPONDENTS (BY SRI G. SHANKARAPPA, ADVOCATE FOR R1 TO R6; SRI B.S. MURALI, ADVOCATE FOR R8 TO R10, R12 AND R21; R11, R18, R19 ARE SERVED;
NOTICE TO R7, R13 TO R17 AND R20 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD.3.11.2011 VIDE ANNEX-J IN O.S.102/2009 PASSED BY THE LEARNED CIVIL JUDGE & JMFC DEVANAHALLI AND THE ORDER DTD.17.11.2014 IN MA 15/2011 VIDE ANNEX-M PASSED BY THE LEARNED V ADDITIONAL DISTRIDCT AND SESSIONS JUDGE, DEVANAHALLI.AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the plaintiffs in a partition & declaration suit in O.S.No.102/2009, are knocking at the doors of writ court for assailing the order dated 17.11.2014, a copy whereof is at Annexure-M, whereby the learned V Addl. District Judge, Devanahalli, has dismissed their appeal in M.A.No.15/2011 confirming the order dated 24.01.2011 made by the learned Civil Judge, Devanahalli by which their application in I.A.No.1 filed under Order XXXIX Rules 1 & 2 of CPC, 1908, was rejected.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this court grants reprieve to the petitioners for the following reasons and subject to the under mentioned conditions:
(a) in the suit of this nature, alienation or encumbering of the subject property would create several complications and therefore, ordinarily the property should remain at the hands of the litigant subject to outcome of the suit; and (b) however, the above (a) should not be construed as a complete embargo for alienation or encumbering of the suit property in all and whatever circumstances; there may exist the circumstances that may justify alienation and that it is open to the parties to seek permission of the court below under Section 52 of the Transfer of Property Act, 1882 for alienating or encumbering the suit property.
In the above circumstances, this Writ Petition succeeds in part; the impugned orders are set at naught; the contesting respondents shall not alienate or encumber their interest in the suit property except with the permission of the trial court. If such an application made by the respondents, the Court below shall consider the same expeditiously.
All contentions are kept open. No costs.
Sd/- JUDGE KTY