IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF OCTOBER, 2019 B E F O R E THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY WRIT PETITION No.49126 OF 2019 (GM-RES) BETWEEN:
Sri. Srinivasa Murthy @ Shekar Vardhan, S/o. Late Ramanna, Aged about 38 years, R/at No.4057, 18th Main, 2nd Stage, Vital Nagar Circle, 80 feet Road, Kumaraswamy Layout, J.P.Nagar, Bengaluru-560 078.
(By Sri. Manjunatha H, Advocate) AND:
1. Smt. Ashwini W/o. Sri Srinivas Murthy, @ Shekar Vardhan, Aged about 23 years.
…PETITIONER 2. Chi. Thaksheel, S/o. Sri. Srinivasa Murthy, Aged about 3 years, Being minor represented By his mother Smt. Ashwini.
Sl.No.1 & 2 are residing at No.132, 4th Main, Muneswara Nagar, Kamakshipalya, Bengaluru-560 079.
…RESPONDENTS This Writ Petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C praying to call for the records of Criminal Appeal No.2028/2019 pending on the file of the Court of LXIII Additional City Civil and Sessions Judge, Bengaluru(CCH- 69), quash the order dated:25.09.2019 passed therein, and consequently allow the application made under S.29(1) of P.W.D.V. Act in Criminal Appeal No.2028/2019, etc.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Heard the submissions of learned counsel for the petitioner.
Perused the memorandum of petition and the impugned order.
2. The present petitioner is the husband of respondent No.1 and father of respondent No.2 against whom the present respondents in their capacity as wife and son respectively had instituted a petition for maintenance and could be able to secure an order in their favour.
For recovery of maintenance amount, when the matter was pending, the present petitioner as a husband, appears to have filed an interlocutory application under S.125(3) and Ss.421(2) and (3) of the Code of Criminal Procedure, seeking attachment and sale of the schedule properties under the said application.
The Trial Court, in its order dated 07.09.2019, observing that admittedly with respect to the very same schedule properties, a civil suit is pending in O.S. No.5261/2017 and an interim order is passed therein and the applicant (petitioner herein) by filing the application under consideration, wants to get a conflicting order in order to defeat any future interest of the petitioner therein, and also observing that similar application filed by the very same applicant has been rejected on 27.11.2018 as not maintainable, proceeded to reject the application under consideration.
3. Challenging the said order of the Trial Court, present petitioner preferred an appeal in Crl.A. 2028/2019, the LXIII Addl. City Civil and Sessions Judge, Bengaluru, which Court by its Order dated 25.09.2019 has ordered for issuance of notice on the respondents therein and has called for lower Court records. The matter is now slated for hearing on 31.10.2019.
4. The present petitioner has sought for a writ of certiorari quashing the order dated 25.09.2019 of the lower Appellate Court and consequently for allowing the application said to be pending in the lower Appellate Court.
5. After hearing the submissions of the learned counsel for the petitioner, who submitted that the main interest and intention of the wife and son of the present petitioner is only to send him to civil imprisonment but not to get the maintenance amount, I am of the view that since the lower Appellate Court has not yet passed any final order on the application filed by the petitioner herein and the appeal is still pending, in such a situation when the lower Appellate Court has merely passed an order of issuance of notice upon the respondents therein, the present petition is premature and this Court finds no reason to interfere at this stage.
6. As such, I am of the view that without even ordering the notice upon the respondents, the petition deserves to be dismissed as premature and devoid of merit.
Accordingly the writ petition is dismissed.
Registry to send copies of this order to both the lower Courts immediately.
Sd/- JUDGE sac*