IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION No.27127/2019 (GM-CPC) BETWEEN:
1. SRI K.N. NARAYANASWAMY S/O. LATE NAREPPA AGED ABOUT 66 YEARS 2. SRI NAGENDRA PRASAD S/O. K.N. NARAYANASWAMY AGED ABOUT 35 YEARS BOTH ARE RESIDING AT:
VENKATESWARA EXTENSION NEAR SFS SCHOOL, KOLAR ROAD SRINIVASPURA TALUK KOLAR DISTRICT – 563 138. ... PETITIONERS (BY SRI SANJAY KRISHNA V., ADVOCATE) AND:
1. SMT MUNINAGAMMA W/O. NANEPPA AGED ABOUT 65 YEARS RESIDING AT: VIVEKANANDA ROAD SRINIVASAPUR TOWN KOLAR DISTRICT – 563 138 2. SMT MUNIYAMMA DEAD BY HER LRS 2(A). MUNIYAPPA S/O. LATE CHINNAPPA AGED ABOUT 75 YEARS 2(B). NAGARAJA S/O. LATE MUNIYAPPA AGED ABOUT 50 YEARS 2(C). LAKSHMI DEVAMMA W/O. KRISHNAMURTHY AGED ABOUT 49 YEARS RESIDING AT: KERSANAAHALLI VILLAGE KASABA HOBLI BANGARPET TALUK – 563 114 2(D). SHIVANNA S/O. LATE MUNIYAPPA AGED ABOUT 47 YEARS 2(E). NAGARATHNAMMA W/O. NARAYANASWAMY AGED ABOUT 45 YEARS RESIDING AT:
CHOKKA DODDIHALLI SIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT – 562 105 2(F). PARVATHAMMA W/O. MANJUNATHA D/O. MUNIYAPPA AGED ABOUT 43 YEARS RESIDING AT:
CHIKKA NAYAKANAHALLI HOSAKOTE TALUK – 562 114 BENGALURU RURAL DISTRICT 2(G). CHANDRAMMA W/O. NANDEESHAPPA D/O. MUNIYAPPA AGED ABOUT 41 YEARS RESIDING AT: KADUBEESANAHALLI VARTHUR POST, K.R.PURAM BENGALURU RURAL DISTRICT – 560 036 2(H). SUMITHRAMMA W/O. MANJUNATH D/O. MUNIYAPPA AGED ABOUT 40 YEARS RESIDING AT: YALACHIPURA VILLAGE KASABA HOBLI – 562 114 KOLAR TALUK & DISTRICT RESPONDENT NOS.2(A), 2(B) AND 2(D) ARE RESIDING AT:
ANUR VILLAGE AND POST KASABA HOBLI CHINTAMANI TALUK – 563 125 CHIKKABALLAPURA DISTRICT 3. SMT. CHINNAKKA W/O. VENKATARAMANAPPA D/O. NAREPPA AGED ABOUT 55 YEARS RESIDING AT:
ANUR VILLAGE AND POST KASABA HOBLI CHINTAMANI TALUK – 563 125 CHIKKABALLAPURA DISTRICT 4. SRI SURESH BABU S/O. KRISHNAPPA AGED ABOUT 42 YEARS RESIDING AT:
VIVEKANANDA ROAD SRINIVASAPUR TOWN – 563 138 5. SMT GAYATHRI W/O. THYAGARAJ D/O. KRISHNAPPA MAJOR BY AGE R/O. MURUGAMALLA VILLAGE & POST MURUGAMALLA HOBLI CHINTAMANI TALUK – 563 146 CHIKKABALLAPURA DISTRICT 6. SMT. BHARATHI W/O. MUNIRAJU D/O. KRISHNAPPA MAJOR BY AGE RESIDING AT:
YELACHIPURA VILLAGE KOLAR DISTRICT – 563 122 ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR TO DISPOSE I.A.NO.1 FILED IN R.A.NO.1/2018, TO STAY THE OPERATION OF THE JUDGMENT AND DECREE DATED 05.12.2017 PASSED IN O.S.NO.115/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, KOLAR, PENDING DISPOSAL OF R.A.NO.1/2018 AND ETC.
THIS WRIT PETITION COMING ON FOR ‘PRELIMINARY HEARING’ THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners being the defendants in O.S.No.115/2012, having suffered a decree and having preferred the appeal in R.A.No.1/2018 against the same are invoking the writ jurisdiction of this Court seeking a direction to the First Appellate Court to consider their application filed under Order XLI Rule 5 of Code of Civil Procedure, 1908 for the stay of the judgment and decree in appeal.
2. Learned counsel for the petitioners argues that once the appeal along with application under Order XLI Rule 5 of CPC is filed, it is a settled legal position that Court has to consider the said application in as much as the judgment and decree in appeal are likely to be put in execution or in FDP as the case may be; which, if that happens then the same would cause great prejudice to the petitioners.
3. There is a force in the above submission and the prayer being efficacious, justifies dispensing with notice to other side and accordingly notice stands dispensed with.
In the above circumstances, the learned Principal District Judge, Kolar is requested to take up petitioners’ application filed under Order XLI Rule 5 of CPC for consideration, before long.
It is open to the petitioners to notify to the learned Judge in FDP proceedings about the direction given in this Court for consideration of their application in the First Appellate Court.
Sd/- JUDGE KLV