IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2017 BEFORE THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA WRIT PETITION NO.42277/2016 (GM-CPC) BETWEEN:
MR. PATHIRAJ S/O LATE CHOWRAPPA, AGED ABOUT 65 YEARS, RESIDING AT NO.17/1, CHURCH STREET, 5TH CORSS, OPP: PALLAVI HOTEL, LINGARAJAPURA, ST. THOMAS TOWN BENGALURU-560 084.
(SENIOR CITIZENSHIP BENEFIT IS NOT CLAIMED). ... PETITIONER (BY SRI: VISHWAJITH SHETTY, ADVOCATE) AND:
1. SMT. SUSHILAMMA W/O LATE MARIAPPA, AGED ABOUT 67 YEARS, RESIDING AT NO.2/1, SATHYAPPA COMPOUND LINGARAJAPURA, ST. THOMAS TOWN, BENGALURU – 560 084.
2. MR. SHAMANNA S/O LATE CHOWRAPPA (SINCE DECEASED BY HIS LEGAL REPRESENTATIVES) 2(a). SMT. RAJAMMA W/O LATE SHAMANNA, AGED ABOUT 73 YEARS, 2(b). SMT. SUSAI MARY D/O LATE SHAMANNA, AGED ABOUT 49 YEARS, 2(c). SRI. SAGIRAJ S/O LATE SHAMANNA, AGED ABOUT 46 YEARS, 2(d). SRI. ANTHONYSAMY S/O LATE SHAMANNA, AGED ABOUT 39 YEARS, 2(e). SRI. JUDEKUMAR S/O LATE SHAMANNA, AGED ABOUT 29 YEARS, 2(f). SRI. JOHNPAL S/O LATE SHAMANNA, AGED ABOUT 27 YEARS, (a) TO (e) ARE R/AT NO.195 SHAMANNA LAYOUT, 6TH CROSS LINGARAJAPURAM, BANGALORE – 084.
3. MRS. PUSHPAMMA D/O LATE CHOWRAPPA, AGED ABOUT 72 YEARS, 4. MRS. ANTHONIAMMA D/O LATE CHOWRAPPA, AGED ABOUT 70 YEARS, 5. MRS. KANIKAMARY D/O LATE CHOWRAPPA AGED ABOUT 69 YEARS 6. SMT. SUSAI MARY D/O MR. SHAMANNA, MAJOR, ALL ARE RESIDING AT NO.17/1, CHURCH STREET, 5TH CROSS, OPP: PALLAVI HOTEL LINGARAJAPURA, ST. THOMAS TOWN, BENGALURU – 560 084. ... RESPONDENTS (BY SRI R.A. DEVANAND, ADVOCATE FOR R-1 & R-3, R2(a) to R2(f), R-4, R-5 & R-6 ARE SERVED AND UNREPRESENTED) ***** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ANNEX-A DATED 05.07.2016 MADE ON I.A. FILED UNDER SEC. 2 & 3 OF THE PARTITION ACT 1893 R/W SEC. 151 OF CPC IN FDP NO. 25023/2012 BY THE COURT OF XXVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This writ petition is listed for preliminary hearing ‘B’ group, pursuant to memo dated 11.01.2017 filed by the Respondents No.1 and 3 in the writ petition.
2. Learned counsel for respondents No.1 and 3 submits that pursuant to the judgment and decree passed by the trial Court, Regular First Appeal is pending before this Court namely R.F.A.No.37/2013, in which, there is an interim order granted by this Court staying the drawing up of final decree in the suit. In the circumstances, learned counsel for the respondents No.1 and 3 submits that the application filed by respondent No.1 herein under Sections 2 and 3 of the Partition Act, 1893 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) could not be acted upon. But the trial Court has allowed that application. He submits that reserving liberty to the concerned parties to file a fresh application under the aforesaid provisions respondent No.1 may be permitted to withdraw that application for the time being. In which event, the impugned order would also become ineffective.
3. Learned counsel for the petitioner has no objection for permitting respondent No.1 to withdraw the aforesaid application. In the circumstance, respondent No.1 is permitted to withdraw the aforesaid application, by reserving liberty to file such an application, if so advised in the final decree proceedings. In view of the aforesaid permission being granted, the impugned order dated 05.07.2016 would no longer remain efficacious or effective.
4. With the aforesaid observations and directions being granted, the writ petition is disposed.
Sd/- JUDGE AP/VBS