IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.49708 OF 2019 BETWEEN:
SMT.PURUSHOTHAM V. S/O.LATE M.VENKATESH AGED ABOUT 65 YEARS EX-SERVICEMAN AND SENIOR CITIZEN R/AT NO.22, 1ST FLOOR 6TH CROSS, LAKSHMI RAMA RAO MANE LAYOUT AKKITHIMMANAHALLI SHANTHINAGAR BENGALURU-560 027 ... PETITIONER (BY SRI K.N.JAGADISH, ADVOCATE) AND:
1. SMT.V.SAROJA W/O.LATE M.VENKATESH C/O.NIGHTINGALES (ELDER CARE) AGED ABOUT 82 YEARS SANJAY KIRANA RICHMOND TOWN BENGALURU-560 025 2. SRI V.SRINIVASA BABU S/O.LATE M.VENAKTESH AGED ABOUT 49 YEARS RESIDING AT NO.60/A 9TH MAIN ROAD, 3RD STAGE WEST OF CHORD ROAD MANJUNATHA NAGAR BENGALURU-560 010 3. SRI G.RAVI S/O.SRI K.GOVINDARAJ AGED ABOUT 48 YEARS 4. SMT.R.MOHANA W/O.SRI G.RAVI AGED ABOUT 39 YEARS R3 AND R4 ARE R/AT NO.5, 5TH MAIN ROAD HANUMANTHAPURAM BENGALURU-560 011 ... RESPONDENTS (BY SRI A. SAMPATH, ADVOCATE FOR C/R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATE 26.08.2019 (ANNEXURE-A) PASSED BY THE COURT OF THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN MISCELLANEOUS NO.187/2015 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being one of the respondents in FDP.No.57/2008 arising from the judgment and decree passed in a partition suit in OS.No.2218/2001, is invoking the writ jurisdiction of this Court for assailing the order dated 26.08.2019, a copy whereof is at Annexure – A whereby XXII Additional City Civil & Sessions Judge, Bengaluru having dismissed his petition in M.P.No.187/2015, has refused to recall the order whereby the compromise was recorded. The contesting respondent No.3 has entered caveat through his counsel and resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter inasmuch as the right of pre-emption which arguably arises from the compromise decree in question, could not have been the subject matter of adjudication in MP.No.187/2015; the Court below has reasoned the impugned order that way and permitted the petitioner to have his recourse in accordance with law.
3. It is settled principle of law of pre-emption that a suit founded on pre-emption has to be filed after the accomplishment of the sale transaction. Therefore, it is open to the petitioner to file a properly reconstituted suit for the redressal of his grievance, if any. The sale of the property under decree which stipulates pre-emption right ordinarily does not warrant recalling of the order whereby the compromise is recorded.
This writ petition being devoid of merits is accordingly disposed off with the above observation.
All contentions of the parties are kept open.
Sd/- JUDGE KTY