IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.8469/2017(GM-CPC) BETWEEN:
1. SMT. SEETHA, W/O LATE ANNI SHETTY, AGED ABOUT 70 YEARS, R/AT BOLLAJE HOUSE, GARDADI VILLAGE, BELTHANGADY TALUK, D.K DISTRICT-574214.
2. VASANTHA SHETTY, S/O LATE ANNI SHETTY, AGED ABOUT 50 YEARS, R/AT BOLLAJE HOUSE, GARDADI VILLAGE, BELTHANGADY TALUK, D.K DISTRICT 574214.
3. SMT. REVATHI, W/O VISHWANATHA SHETTY, AGED ABOUT 46 YEARS, R/AT ARMADY HOUSE, ODILNALA VILLAGE, BELTHANGADY TALUK, D.K DISTRICT 574214.
4. SATHEESHA SHETTY, S/O LATE ANNI SHETTY, AGED ABOUT 40 YEARS, R/AT BOLLAJE HOUSE, GARDADI VILLAGE, BELTHANGADY TALUK, D.K.DISTRICT 574214.
5. SURESH SHETTY, S/O LATE ANNI SHETTY, AGED ABOUT 36 YEARS, R/AT BOLLAJE HOUSE GARDADI VILLAGE, BELTHANGADY TALUK, D.K DISTRICT 574214.
(BY SRI VIKAS. M., ADVOCATE FOR SRI SACHIN B. S., ADVOCATE) AND:
VISHWANATHA SHETTY, S/O LATE ANNI SHETTY, AGED ABOUT 52 YEARS, R/AT BOLLAJE HOUSE, GARDADI VILLAGE, BELTHANGADY TALUK, D.K DISTRICT 574214.
... PETITIONERS ... RESPONDENT (BY SRI G.L. MOHAN MAIYA, ADVOCATE FOR SRI A. KESHAVA BHAT, ADVOCATE) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 24.1.2017 PASSED ON I.A.NO.2 IN R.A.NO.7 OF 2016 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY D.K. AS PER ANNEXURE-A AND CONSEQUENTLY ALLOW THE IA.NO.2 AS PRAYED FOR.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants filed the present writ petition against the order dated 24.01.2017 made in R.A. No. 7/2016 on the file of the Prl. Senior Civil Judge and JMFC, Belthangady, Dakshina Kannada, rejecting I.A.No.2 filed by the defendants/petitioners under Order XLI Rule V r/w Section 151 of Code of Civil Procedure.
2. The respondent who is plaintiff before the Trial Court filed suit for partition and separate possession in respect of suit schedule ‘A’ properties contending that the plaintiff and defendants are the brothers and the suit schedule properties are the joint family properties and plaintiff is entitled to 1/6th share and there was no prior partition in the joint family.
3. The defendants filed written statement and contended that the first defendant’s husband late Anni Shetty had bequeathed plaint schedule properties when he was hale and healthy and in a sound state of mind and executed the Will dated 22.10.2007 jointly in favour of the first and second defendants, and after the death of Anni Shetty, the second defendant and rest of the children of late Anni Shetty have no right whatsoever over plaint ‘A’ schedule properties and accordingly, sought for dismissal of the suit.
4. After contest, the Trial Court, by the judgment and decree dated 14.10.2015, decreed the suit holding that the plaintiff is entitled to 1/6th share in the suit schedule properties. Aggrieved by the said judgment and decree, the defendants/petitioners filed R.A.No. 7/2016 on the file of the Prl. Senior Civil Judge and JMFC, Belthangady, and also filed I.A.No.2 under Order XLI Rule 5 r/w Section 151 of Code of Civil Procedure to stay the operation of the judgment and decree passed by the Trial Court. The said application was resisted by the plaintiff/respondent.
5. The lower appellate Court, by the impugned order dated 24.01.2017, rejected the application mainly on the ground that till the finalization of the decree, the decree holder cannot wait and no injustice will be caused to the defendants/ petitioners. Aggrieved by the said order, the defendants have filed the present writ petition.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Vikas, learned counsel for Sri Sachin B.S. learned counsel for the defendants/petitioners contended that the impugned order passed by the lower Appellate Court rejecting the application filed by the petitioners under Order XLI Rule 5 r/w Section 151 of Code of Civil Procedure is erroneous and contrary to the material on record. He further contended that when there is a decree in favour of the plaintiff granting 1/6th share and if decree is implemented, the very purpose of filing Regular Appeal will be frustrated and the defendants will be put to loss and great hardship which cannot be compensated. Though a specific contention is taken in the written statement that the first defendant’s husband executed a Will and after his death, the property devolved on defendants 1 and 2; and as such, rest of the children of late Anni Shetty have no right over the properties, the Trial Court has not considered the same and proceeded the pass the impugned judgment and decree. The said aspect of the matter is not considered by the lower Appellate Court and rejected the application and therefore, sought to quash the impugned order passed by the lower Appellate Court.
8. Per contra, Sri G.L.Mohan Maiya, learned counsel for Sri A. Keshava Bhat, learned counsel for the respondent/ plaintiff sought to justify the impugned order and contended that the impugned order passed by the lower Appellate Court is just and proper.
9. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed suit for partition and separate possession contending that the suit schedule properties are the joint family properties of plaintiff and defendants and there was no prior partition. It is the specific contention of the defendants in the written statement that during the lifetime of Anni Shetty, he had executed Will dated 22.10.2007 in favour defendant No.2 and therefore, suit is not maintainable.
10. The Trial Court, considering the entire material on record, by the judgment and decree dated 14.10.2015, decreed the suit holding that the plaintiff is entitled to 1/6th share. Being aggrieved by the Judgment and Decree of the Trial Court, the defendants filed R.A.No.7/2016. Along with the appeal, the defendants also filed an application under Order XLI Rule 5 r/w Section 151 of Code of Civil Procedure to stay the operation of the judgment and decree dated 14.10.2015 passed by the Trial Court. The Lower Appellate Court, considering the application and the objections, rejected the application mainly on the ground that till disposal of the appeal the plaintiff who succeeded in the suit cannot wait and rejection of the application will not affect the interest of the defendants.
11. The lower appellate Court failed to notice the specific defence taken by the defendants that the properties belonged to late Anni Shetty who executed the Will in favour of the second defendant as on the date of filing of suit and the property was not available for partition and therefore, the suit was not maintainable. The Trial Court decreed the suit holding that the plaintiff is entitled to a share. Whether the plaintiff is entitled to share and whether the decree is just and proper, has to be decided by the lower Appellate Court. If ultimately the lower appellate Court reverses the judgment and decree passed by the Trial Court, by that time, if the decree is implemented no useful purpose will be served.
12. In all fairness, the lower Appellate Court ought to have stayed atleast drawing up of the final decree, in the interest of the parties. Same is not done. The impugned order passed by the lower appellate Court is not in consonance with the discretionary power enshrined under Order XLI Rule 5 r/w Section 151 of Code of Civil Procedure. The rights of the parties has to be decided on merits and they cannot be deprived of their rights on technicality. In view of the same, the impugned order passed by the lower appellate Court rejecting the application filed under Order XLI Rule 5 r/w Section 151 of Code of Civil Procedure, calls for interference.
13. For the reasons stated above, writ petition is allowed in part. The impugned order dated 24.01.2017 made in R.A. No.7/2016 on the file of the Prl. Senior Civil Judge and JMFC, Belthangady, Dakshina Kannada, rejecting I.A.No.2 filed by the defendants/petitioners under Order XLI Rule V r/w Section 151 of Code of Civil Procedure is quashed. The application is allowed in part. The drawing up of final decree alone is stayed permitting the plaintiff to proceed with the final decree proceedings. In the meanwhile, the lower appellate Court is directed to decide the appeal as expeditiously as possible, subject to cooperation by both the parties.
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