Writ Petition No. 19128 of 2017 · The High Court
Case Details
- 1 - NC: 2025:KHC:113 WP No. 19128 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 19128 OF 2017 (GM-CPC) BETWEEN: 1. SADASHIVAIAH AGED ABOUT 75 YEARS, S/O LATE KURIGUDDE GOWDA THIGALANAHALLI SHETTIKERE HOBLI CHIKKANAYAKANAHALLI TQ TUMAKURU DISTRICT-572 101 1A. SIDDARAMAKKA AGED ABOUT 65 YEARS W/O LATE T.G.SADASHIVAIAH 1B. T.S. SUDHAKAR AGED ABOUT 42 YEARS S/O LATE T.G.SADASHIVAIAH 1C. T.S. SHEKAR AGED ABOUT 41 YEARS S/O LATE T.G.SADASHIVAIAH 1D. T.S.PARASHURAM AGED ABOUT 39 YEARS S/O LATE T.G.SADASHIVAIAH 1E. T.S.PUSHPA AGED ABOUT 37 YEARS S/O LATE T.G.SADASHIVAIAH ALL SL.NOS. 1(A) TO (E) ARE RESIDENTS OF THIGALANAHALLI CHIKKANAYAKANAHALLI TALUK TUMAKURU DISTRICT-572 101 Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
Legal Reasoning
(BY SRI. M VINEYA KEERTHY, ADVOCATE) …PETITIONERS - 2 - NC: 2025:KHC:113 WP No. 19128 of 2017 AND: 1. MANJULAMMA AGED ABOUT 53 YEARS, W/O MAHADEVAIAH 2. MAHADEVAIAH AGED ABOUT 63 YEARS, S/O LATE KURIGUDDE GOWDA BOTH RESIDENT OF THOREMAVINAHALLI KASABA HOBLI, TURUVEKERE TALUK TUMAKURU DISTRICT-572 101 (BY SRI.B.R.RAGHAVENDRA, ADVOCATE FOR R1 R2- SERVED AND UNREPRESENTED) …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 10.3.2017 PASSED BY THE LEARNED SR. CIVIL JUDGE AND JMFC, CHIKKANAYAKANAHALLI IN EX. APPEAL NO. 1/16 AT ANNEXURE-H. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER The present writ petition is filed questioning the order passed in Ex.A.No.1/2016 dated 10.03.2017 by the Senior Civil Judge and JMFC, Chikkanayakanahalli, whereby the Trial Court had dismissed the appeal filed by the petitioner herein. 2. The petitioner herein is an objector and the brother of the JDR. The respondent herein, who is the DHR, has filed a - 3 - NC: 2025:KHC:113 WP No. 19128 of 2017 suit for maintenance and also sought for charge over the suit schedule properties. It is the case of the objector that the suit item Nos.1 and 3 properties are purchased by him from the DHR even prior to filing of the suit. After filing of the suit the plaintiff/DHR had filed an I.A. under Order 1 Rule 10(2) of CPC to implead the objector as a proposed defendant to the suit. Objections were filed by the objector who is the petitioner herein and I.A. filed by the plaintiff/DHR was dismissed. Thereafter, by judgment and decree dated 20.10.2012, the suit was decreed whereby, the husband is directed to pay monthly maintenance of an amount of Rs.1,000/- during the lifetime of the plaintiff from the date of the suit and there shall be a charge on all the schedule properties for recovery of maintenance amount. Thereafter, in the execution proceedings when the sale proclamation was done, at that point of time, the petitioner herein has come up before the Trial Court by filing his objections. Ex.P.No.3/2013 came to be dismissed on 29.07.2016. That was carried in Ex.A.No.1/16 and the Appellate Court had dismissed the said appeal. 3. While dismissing the appeal, the Appellate Court had observed that it is not disputed that the appellant and JDR - 4 - NC: 2025:KHC:113 WP No. 19128 of 2017 are the real brothers and the suit item Nos.1 and 3 are their ancestral properties and DHR is the wife of JDR. Though the PW1 in his cross examination has deposed that they were not aware about the filing of the suit in O.S.No.171/2007 by the DHR against the JDR but, the appellant who has appeared before the Trial Court had filed the objection to the application filed by the JDR under Order 1 Rule 10(2) of CPC. The Trial Court had also observed that the petitioner herein has contended that he is not a necessary party and accordingly, the application has been dismissed and against the said order, the petitioner herein has not taken any steps and he has not challenged the said order. Further, with regard to the contention that steps should have been taken in respect to the other properties, the Trial Court had given a finding that no person can insist the DHR to take steps only against the particular items of the execution petition and the DHR cannot be forced to first exhaust remedy by taking steps against other properties and the Trial Court has come to the conclusion that there is no grounds and accordingly, dismissed the appeal. Aggrieved thereby the petitioner/objector is before this Court. - 5 - NC: 2025:KHC:113 WP No. 19128 of 2017 4. Learned counsel appearing for the petitioner/ objector submits that when the Trial Court had dismissed the I.A. that is filed by the respondent herein under Order 1 Rule 10 of CPC. The Trial Court has given a finding that the petitioner is not a proper and necessary party to the suit. The Trial Court ought not to have created charge for the properties that are purchased by the petitioner. It is stated that the Trial Court has rejected the application stating that there are other properties and there is no necessity to implead the petitioner herein. It is further submitted that though there are 7 items in the suit schedule, but the DHR has chosen to file the execution petition in respect to the properties which are purchased by the petitioner herein. He submits that both the Courts without considering the case of the petitioner in it’s proper perspective, had dismissed the same. 5. Learned counsel appearing for the respondent/DHR submits that the petitioner has not questioned the judgment and decree that is passed nor the application that was dismissed by the Trial Court that was filed by the respondent herein under Order 1 Rule 10 of CPC. It is submitted that it is for the DHR to decide how he will get the decree executed and - 6 - NC: 2025:KHC:113 WP No. 19128 of 2017 the objector cannot insist on the mode of the execution and the Trial Court had rightly dismissed the petition. He submits that there are no reasons to interfere with the order impugned. 6. Having heard the learned counsels on either side, perused the material available on record. In the suit schedule, there are 7 items. Item Nos.1 and 3 according to the petitioner, they are purchased by him much before filing of the suit and when the plaintiff therein wanted to implead this petitioner, that came to be dismissed and remained unchallenged. He also draws the attention of the Court to the particular order where the I.A. filed under Order 1 Rule 10 of CPC is dismissed and the observation that he is not a proper and necessary party and it is also observed that there are some other properties. The submission of the learned counsel for the respondents that the order that is passed by the Trial Court rejecting an application under Order 1 Rule 10 of CPC ought to have been questioned by the petitioner has no legs to stand. When a charge is created in respect of the properties that were purchased by him, the petitioner being aware of such a judgment and decree that was passed, as the JDR happens to be his brother, he has not taken any steps to question the said judgment and decree - 7 - NC: 2025:KHC:113 WP No. 19128 of 2017 passed by the Trial Court. The contention that the DHR ought to have taken steps for execution in respect of the other properties, leaving his properties, even that submission has no legs to stand and this Court is not able to appreciate the same. It is the prerogative of the DHR to take steps in whatever manner he wants to execute the decree and the JDR cannot insist. The objector ought to have questioned the said judgment and decree as far as creating a charge over the properties that were purchased by him much prior to the suit. In that view of the matter, this Court do not find any reasons to interfere with the impugned order. Accordingly, this Court is passing the following:
Decision
ORDER i. Accordingly, the writ petition is disposed of by giving liberty to the petitioner to question the judgment and decree dated 20.10.2022 within a period of two months from the date of receipt of the copy of the order. ii. The interim order that is granted by this Court whereby the attachment of item Nos.1 and 3 of - 8 - NC: 2025:KHC:113 WP No. 19128 of 2017 the schedule property is stayed, will continue for a period of two months from the date of receipt of copy of the order. iii. All pending I.A’s, in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN List No.: 1 Sl No.: 3