IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MRS JUSTICE B V NAGARATHNA MISCELLANEOUS FIRST APPEAL No.5701/2017 (CPC) BETWEEN:
K.P.VISHWANATH S/O K.C.PUTTAIAH AGED ABOUT 58 YEARS R/AT: NO.27, 1ST CROSS BHANAVAR MAIN ROAD ABBHIGERI, BENGALURU – 560 090 ... APPELLANT (BY SRI.Y.R.SADASHIVA REDDY, SENIOR COUNSEL A/W SRI. DEEPAK.M., ADV.) AND:
1. SMT. ROOPALAXMI W/O SRI. KIRANKUMAR S. D/O K.P.VISHWANATH AGED ABOUT 37 YEARS R/AT: NO.108, 4TH MAIN 3RD STAGE, GOKULAM MYSURU – 570 002 2. SMT. BHAGYALAXMI W/O SRI. SANTHOSH L.C. D/O K.P.VISHWANATH AGED ABOUT 33 YEARS R/AT: NO.372, 5TH CROSS ROOPA NAGAR MYSURU – 570 026 3. SMT. M.SHOBHA W/O LATE N.JAYARAMREDDY AGED ABOUT 44 YEARS R/AT : SHOBHA DIAGNOSTICS NELAMANGALA TOWN NELAMANGALA – 562 123 4. SRI. T.M.SUDARSHAN S/O SRI. VISWESWARA ADIGA AGED ABOUT 53 YEARS 5. SRI. N.NARAYAN ADIGA S/O SRI. VISWESWARA ADIGA AGED ABOUT 49 YEARS 6. SRI. RAGHAVENDRA ADIGA S/O SRI. VISWESWARA ADIGA AGED ABOUT 45 YEARS THE RESPONDENTS NO.3 TO 5 ARE R/AT: OPPOSITE S.B.M. PARAMANNA LAYOUT BENGALURU RURAL DISTRICT NELAMANGALA – 562 123 7. SRI. N.R.HONNASHIDDAYYA S/O SRI. T.S.RAJAPPA MAJOR R/AT: CHANDRAMOULESHWAR BHADAVANE THAMAGONDLU HOBLI, THAMAGONDLU NELAMANGALA TALUK – 562 123 8. SMT. HEMAVATHI W/O SRI. N.R.SIDDANANJAIAH MAJOR R/AT: THAMAGONDLU TOWN KOTE THAMAGONDLU HOBLI THAMAGONDLU NELAMANGALA TALUK – 562 123 9. SRI. N.R.REVANASHIDDAIAH S/O SRI. T.S.RAJAPPA MAJOR, R/AT: ANEBHEEDI THAMAGONDLU HOBLI THAMAGONDLU NELAMANGALA TALUK – 562 123 10. SMT. B.K.PUSHPA W/O SRI. N.R.HONNASHIDDAIAH MAJOR, CHANDRAMOULESHWAR BHADAVANE, THAMAGONDLU HOBLI THAMAGONDLU NELAMANGALA TALUK – 562 123 11. SMT. JAYANTHI W/O SRI. N.R.REVANASHIDDAIAH MAJOR, R/AT: ANEBHEEDI THAMAGONDLU HOBLI THAMAGONDLU NELAMANGALA TALUK – 562 123 12. SMT. LAKSHMAMMA W/O SRI. RAMANNA MAJOR, THAMAGONDLU HOBLI THAMAGONDLU NELAMANGALA TALUK – 562 123 ... RESPONDENTS (BY SRI. D.R.RAVISHANKAR, ADV., FOR R1) THIS APPEAL IS FILED UNDER ORDER XLIII RULE 1(r) READ WITH SECTION 104 OF CPC., AGAINST THE ORDER DATED 12.04.2017 PASSED ON I.A.NO.1 IN O.S.NO.6165/2015 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY, ALLOWING THE I.A.NO.1 FILED UNDER SECTION 151.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for respondent No.10 has raised a preliminary objection with regard to the maintainability of the appeal under Order XLIII Rule 1 (r) r/w Section 104 of Code of Civil Procedure, 1908(CPC). He has drawn my attention to the fact that the impugned order was passed under Section 151 of Code of Civil Procedure, 1908(CPC) and that if the appellant is aggrieved by the impugned order, then he may have to prefer a Writ petition under Article 227 of the Constitution of India. In the circumstances, learned Senior Counsel for the appellant submits that the appellant may be permitted to withdraw this appeal with liberty to file a writ petition.
2. Submission is placed on record.
3. In the circumstances, the appeal is dismissed as withdrawn, reserving liberty to the appellant to file Writ petition under Article 227, if so advised.
4. Office to return certified copy of the impugned order and any other certified copies of the Annexures produced along with the Memorandum of appeal to appellant’s counsel forthwith, subject to filing of copies of the same for the purpose of record.
In view of the dismissal of the appeal I.A.No.1/2017 also stands withdrawn.
Sd/- JUDGE Psg*