IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.47460/2016(GM-CPC) BETWEEN:
SRI NARAYANAPPA, S/O LATE SRI RANGAIAH @ DOLLAIAH SINCE DECEASED BY HIS LRS.
1. SMT. HOMBALAMMA, W/O LATE SRI NARAYANAPPA, AGED ABOUT 68 YEARS, 2. SRI B. N. RANGEGOWDA, S/O LATE SRI NARAYANAPPA, AGED ABOUT 43 YEARS, 3. SRI B. N. CHANDRAPPA, S/O LATE SRI NARAYANAPPA, AGED ABOUT 41 YEARS, 4. SRI B. N. JAGADEESH @ YOGARAJ, S/O LATE SRI NARAYANAPPA, AGED ABOUT 37 YEARS, ALL ARE R/AT BIDANAGERE VILLAGE, KASABA HOBLI,KUNIGAL TALUK, TUMKUR DISTRICT-572130.
... PETITIONERS (BY SRI G.B. NANDISH GOWDA, ADVOCATE FOR SRI R.B. SADASIVAPPA, ADVOCATE) AND:
SRI THOPANAIAH S/O LATE SRI RANGAIAH @ DOLLAIAH, SINCE DECEASED BY HIS LRS, 1. SMT. GANGAMMA, W/O LATE SRI THOPANAIAH, AGED ABOUT 64 YEARS, 2. SMT. PREMA, W/O SRI SIDDALINGAIAH, D/O LATE SRI THOPANAIAH, AGED ABOUT 36 YEARS, RESPONDENTS 1 AND 2 ARE R/AT No.11A, 3RD CROSS, LINGARAJAPURAM, BENGALURU-560084.
3. SMT. B. T. VENKATESHA S/O LATE SRI THOPANAIAH, AGED ABOUT 44 YEARS, 4. SRI B. T. DEVARAJA S/O LATE SRI THOPANAIAH, AGED ABOUT 40 YEARS, 5. SRI B. T. LOKESHA S/O LATE SRI THOPANAIAH, AGED ABOUT 34 YEARS, RESPONDENTS 3 TO 5 ARE R/O BIDANAGERE VILLAGE, KASABA HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT-572130.
6. SIR B. T. VENKATESH, S/O LATE SRI THOPANAIAH, AGED ABOUT 44 YEARS, R/O BIDANAGERE VILLAGE, KASABA HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT-572130.
... RESPONDENTS (BY SRI P. M. SIDDAMALLAPPA, ADVOCATE FOR R1 to R6) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 8.8.2016 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC, KUNIGAL IN FDP NO.3/2013 ON THE APPLICATION THAT IS IA NO.3 VIDE ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The present petitioners who are the respondents in FDP No.3/2013 are before this Court against the order dated 8.8.2016 as per Annexure-E allowing I.A. No.3 filed under Order 6 Rule 17 of the Code of Civil Procedure by the present respondents permitting to delete item No.10 from the schedule of the petition.
2. The original plaintiff – Thopanaiah filed the suit for partition and separate possession which came to be decreed on 24.1.2009. The said decree has reached finality. Thereafter FDP No.3/2013 is filed to implement the decree under Order 20 Rule 18 r/w Section-54 of the Code of Civil Procedure. During the pendency of the proceedings in FDP No.3/2013, the present respondents filed application for amendment, which came to be allowed. Hence this writ petition is filed.
3. Sri G.B. Nandish Gowda, learned counsel for the petitioners contended that the trial Court without considering the objections filed, has erroneously allowed the application. The earlier application filed by the very petitioners under Order 6 Rule 17 of the Code of Civil Procedure for the very same relief came to be rejected on 4.2.2015. Without considering the said order, the 2nd application filed under order 6 Rule 17 of the Code of Civil Procedure for the similar relief came to be allowed by the impugned order and therefore the same is hit by the provisions of res judicata under Section 11 of the Code of Civil Procedure. The same cannot be sustained.
4. Sri P.M. Siddamallappa, learned counsel for Respondent Nos.1 to 6 filed memo in the office on 3.10.2017 for disposal of the writ petition stating that the respondents have no objection to allow the writ petition. The said memo is placed on record.
5. Having heard the learned counsel for the petitioners, it is not in dispute that the present respondents filed an application earlier in FDP No.3/2013 under Order 6 Rule 17 of the Code of Civil Procedure for deletion of item No.10 of the property. The same came to be rejected on 4.2.2015. The said order was not challenged and reached finality. Subsequently, similar application filed for the same relief under Order 6 Rule 17 of the Code of Civil Procedure came to be allowed by the impugned order ignoring the earlier order passed. In view of the above, the impugned order passed by the trial Court is hit by the provisions of res judicata under Section 11 of the Code of Civil Procedure. Once earlier order passed by the trial Court has reached finality, question of filing present application and allowing the application would not arise.
6. In view of the aforesaid reasons and in view of the memo filed by the learned counsel for the respondents, the writ petition has to be allowed by quashing the impugned order passed by the trial Court.
Accordingly, the Writ Petition is allowed. The impugned order passed by the trial Court in FDP No.3/2013 as per Annexure-E is hereby quashed. I.A. No.3/2013 filed by the present respondents in FDP No.3/2013 under Order 6 Rule 17 of the Code of Civil Procedure is rejected.
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JUDGE Gss/-