IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.50895 OF 2019 (GM-CPC) BETWEEN:
S G SHIVAKUMAR S/O LATE S M GANGADHARAIAH AGED ABOUT 62 YEARS AGRICULTURIST R/O DODDASAGGERE HOLAVANAHALLI HOBLI KORATAGERE TALUK TUMKUR DISTRICT-572 121 ... PETITIONER (BY SRI A.V.GANGADHARAPPA, ADVOCATE) AND:
1. SMT. RENUKA D/O SOMASHEKHAR AGED ABOUT 37 YEARS 2. SMT SARVAMANGALAMMA D/O LATE S.M.GANGADHARAIAH AGED ABOUT 70 YEARS 3. SOMASHEKHAR HUSBAND OF RATHNAMMA AGED ABOUT 70 YEARS 4. SMT JAYAMMA D/O LATE S M GANGADHARAIAH AGED ABOUT 70 YEARS ALL ARE R/F DODDASAGGERE HOLAVANAHALLI HOBLI KORATAGERE TALUK TUMKUR DISTRICT-572 121 … RESPONDENTS (BY SRI CHANDRASHEKARAN, ADVOCATE FOR C/R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.12.2018 PASSED ON I.A.NO.IV AND DATED 28.08.2019 ON I.A.NO.V BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT MADHUGIRI IN FDP.NO.9/2009 CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-M AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the first defendant in a partition suit in O.S.No.147/2003 which has been decreed by the trial Court and the said decree has been affirmed by the First Appellate Court, is grieving before the Writ Court against the order dated 28.08.2019 whereby his application in I.A.No.5 filed in FDP.No.9/2009 for re-allocation of the shares has been rejected.
2. The respondent/plaintiff Nos.1&2 having entered caveat through their counsel, resist the writ petition contending that the original allotment made under the decree that has been affirmed in R.A.No.57/2019 come in the way of the petitioner laying a challenge to the impugned order.
3. Learned counsel for the petitioner having argued the matter for some time now fairly submits that if some reprieve is granted, the same would facilitate the filing of second appeal on civil side for laying a challenge to the order/decree made by the First Appellate Court.
4. Having heard the learned counsel for the parties and having perused the petition papers, although the contention of the respondents/caveators is upheld and challenge to the impugned order is negatived, this Court is of the considered opinion that justice can be meted out to both the side if the FDP is halted for some short period so that the petitioner would be in position to avail the appellate remedy.
In the above circumstances, this writ petition is disposed off without granting indulgence in the matter, directing the learned Judge of the Court below to keep the Final Decree Proceedings in abeyance for a period of five weeks.
No costs.
Sd/- JUDGE KTY