IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.6968 OF 2019 (CPC) BETWEEN:
1. R. PRAKASH S/O LATE S.M. RAJU AGED ABOUT 50 YEARS 2. SMT. V.G. SATHYA PREMA W/O R. PRAKASH AGED ABOUT 41 YEARS BOTH ARE R/AT NO.325A IDEAL HOMES, 18TH CROSS RAJARAJESHWARINAGAR BENGALURU – 570 058 …. APPELLANTS (BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. K.R. MANJUNATH S/O K.T. RADHAKRISHNE GOWDA AGED ABOUT 56 YEARS R/AT: NO.75, 3RD CROSS SBM COLONY, MATTIKERE BENGALURU – 570 054 2. RANGANATH H S/O LATE HANUMANTHARAYAPPA R/AT: NO.103, NANDISH APARTMENT MUTHYALAMMANAGAR BENGALURU – 570 054 3. ANISHA MOHAMMED NIYAZ W/O MOHAMMED NIYAZ D/O USMAN & BEE FATHUMMA AGED ABOUT 30 YEARS R/AT: NO.5-77-1, NEHRUNAGAR BEHIND E.S. HOUSE NARIKUMBU, D.K. DISTRICT PIN – 574 231 ... RESPONDENTS (BY SRI Y.R.SADASHIVA REDDY, SENIOR ADVOCATE FOR SRI SRINIVASA MURTHY D., ADVOCATE FOR C/R1; NOTICE TO R2 AND R3 NOT PRESSED VIDE ORDER DATED 10.10.2019) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 10.07.2019 PASSED ON I.A.NO.2 IN O.S.NO.139/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, ALLOWING I.A.NO.2 DATED 10.04.2019 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Appellants were defendant Nos.2 and 3, respondent No.1 was plaintiff, respondent Nos.2 and 3 were defendant Nos.1 and 4 in O.S.No.139/2019 before the trial Court. They will be referred to henceforth with their ranks before the trial Court.
2. Plaintiff filed O.S.No.139/2019 against the defendants for specific performance of agreement of sale dated 30.11.2015 executed by defendant No.1 in his favour. He further sought declaration that the gift deed dated 07.04.2017 executed by defendant No.2 in favour of defendant No.3 and sale deed executed by defendant No.3 in favour of defendant No.4 on 10.12.2018 are null and void and do not bind him.
2. In the said suit, plaintiff filed I.A.No.2 against the defendants seeking temporary injunction restraining the defendants from alienating the suit schedule properties till disposal of the suit.
3. The trial Court on hearing the parties by the impugned order dated 10.07.2019 granted temporary injunction restraining the defendants from alienating the suit schedule properties or creating any charge over the same 4. Learned counsel for the appellants has filed a memo stating that he does not press the appeal against respondent Nos.2 and 3 i.e. defendant Nos.1 and 4.
5. Section 52 of the Transfer of Property Act, 1882 prohibits alienation of suit schedule properties even in the absence of any temporary injunction order. In view of Section 52 of the Transfer of Property Act, without permission of the Court, the parties cannot alienate the suit schedule properties pending lis.
6. Under such circumstances, interest of justice will be served by modifying the order to the effect that the defendants shall not alienate the suit properties without prior permission of the Court and directing the Court to dispose of the suit in a time bound manner.
7. Therefore, the appeal is partly allowed.
The impugned order dated 10.07.2019 passed by the II Additional Senior Civil Judge and CJM, Mangaluru in O.S.No.139/2019 is modified as follows:
The defendants or anybody claiming under them shall not alienate the suit schedule properties without the prior permission of the Court till disposal of the suit.
The trial Court shall take up the matter on day to day basis and dispose of the same within a period of six months from the date of receipt of copy of this order. All the parties shall co-operate for the disposal of the suit.
In view of disposal of the main appeal, I.A.No.1/2019 does not survive for consideration and stood disposed of accordingly.
Sd/- JUDGE Mds/-