SRI v. SHAMANNA. AGED ABOUT 67 YEARS, S/O LATE J. VENKATASWAMY, R/AT NO.11, 2ND "B" CROSS
Case Details
- 1 - NC: 2025:KHC:4138 WP No. 49482 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 49482 OF 2019 (GM-CPC) BETWEEN: SRI. V. SHAMANNA. AGED ABOUT 67 YEARS, S/O LATE J. VENKATASWAMY, R/AT NO.11, 2ND "B" CROSS, JANGAMAMESTRI GALLI, BALEPET, BANGALORE - 560 053. (BY SRI. B.N. JAYADEVA, ADVOCATE) AND:
Legal Reasoning
perused the material on record. There is no dispute about the fact that Final Decree Proceedings were initially initiated after the judgment and decree passed by the trial Court. Thereafter, RFA is filed and in the RFA, the Court had observed that as one of the plaintiff has died, now the defendant and the plaintiff are entitled for half of the share each. Then in the final decree proceedings, when the property was put to auction, at that - 6 - NC: 2025:KHC:4138 WP No. 49482 of 2019 point of time, defendant No.1 had come before the Court with this application on the maintainability and the second ground is that an enquiry needs to be done in respect of the amount he spent for redemption of the mortgage. As far as his first objection is concerned with regard to maintainability, in the considered opinion of this Court, it has no legs to stand and the Final Decree Proceedings are very much maintainable. Then coming to the amount that he has spent for redemption of the mortgage is concerned, the Court ought to have conducted an enquiry but for conducting an enquiry, the sale proceedings need not be stalled. Considering all these aspects, this Court is passing the following:
Arguments
SMT. V. SHARADA, AGED ABOUT 65 YEARS, D/O LATE J. VENKATASWAMY, W/O SRI. RAMAKRISHNA, R/AT NO.11, 2ND B CROSS, JANGAMAMESTRI GALLI, BALEPET, BANGALORE - 560 053. Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA …PETITIONER …RESPONDENT (BY SRI. VIVEK B.R, ADVOCATE FOR SRI. KASHYAP N. NAIK, ADVOCATE) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 19.7.2017 AT ANNEXURE-G PASSED IN FDP NO.27/04 ON THE FILE OF THE HONBLE XVIII ADDL CITY CIVIL AND - 2 - NC: 2025:KHC:4138 WP No. 49482 of 2019 SESSIONS JUDGE (CCH-10) AT BANGALORE AND ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER SEC.151 CPC AT ANNEXURE-E AND ETC., THIS PETITION, COMING ON FOR RELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the orders passed on I.A.No.11 in FDP No. 27/2004 dated 19.07.2019, the defendant No.1 in the suit is before this Court. 2. The respondent herein had filed a suit for partition, which came to be decreed, whereby the plaintiffs and defendants were granted 1/3rd share each. Thereafter, defendant No.2 has filed RFA No. 1311/2003 and during the pendency of the RFA, plaintiff No.2 died and then both the plaintiff and defendant have been granted half share each. In the RFA order, there is a mention about the defendants redeeming the mortgage. In that the Court has observed that the trial Court has rightly decreed awarding 1/3rd share each. It is submitted that plaintiff No.1 died. If she died, her share has - 3 - NC: 2025:KHC:4138 WP No. 49482 of 2019 to be divided among the plaintiff No.2 and defendant No.1 subject to adjustment, if any, in the final decree proceedings. Even before the RFA is filed, the plaintiff had initiated the FDP proceedings i.e., FDP No.27/2004. Now the present IA is filed i.e., I.A.No.11 by the defendant to defer the auction sale of item No.1 of the property, till consideration of his objection regarding maintainability of the petition and if maintainable, till the enquiry is conducted regarding adjustments as observed by the High Court in RFA No. 1311/2003. The Court by order impugned had dismissed the application and observed that if the mortgage amount is paid by the first defendant, that is an amount of ₹13,300/- can be adjusted, if the document is produced with regard to this payment if admitted by the petitioner and for this payment, once again enquiry is not necessary, unless and until an amount of ₹13,300/- be get adjusted from the sale consideration, if there is no objection for such adjustment on behalf of the petitioner No.2. Further, with regard to the maintainability of the Final Decree Proceedings, the Court has also negatived the same that the Court now considering the judgement in the first appeal, since half share is allotted to the plaintiff and the defendant is proceeding with - 4 - NC: 2025:KHC:4138 WP No. 49482 of 2019 the matter, has observed that such objection cannot be sustained and accordingly dismissed the application. Aggrieved thereby, defendant No.1 is before this Court. 3. Learned counsel appearing for the petitioner submits that when Final Decree Proceedings were initiated, as per the judgement and decree passed in the suit, whereby 1/3rd share is allotted to the parties, now when the another judgment and decree is passed and when that is merged with this judgment and degree, the Final Decree Proceedings cannot be continued on the earlier judgment and decree. It is submitted that when it is the case of the defendant that he redeemed the mortgage and paid an amount in the year 1983, unless and until an enquiry is conducted, what is the amount that he has spent and as these many years have passed by and what is his entitlement, the Court cannot proceed with the same. The Court without considering all these aspects had dismissed the petition. 4. Learned counsel appearing for the respondent submits that only with the delay tactics, these kind of applications are filed by the plaintiff. He submits that the Final - 5 - NC: 2025:KHC:4138 WP No. 49482 of 2019 Decree Proceedings are going ahead basing on the judgement and decree passed in RFA. Further, the defendant is enjoying the property inspite of an order passed by the Court, he is not depositing the rents before the Court. It is submitted that if whatever amount he has spent for redeeming the mortgage, if the same amount is paid to him, he has no objection. It is submitted that now by virtue of the stay granted by the Court, the entire sale proceedings are stayed. He submits that the Court had rightly observed that no enquiry is required as requested by the petitioner herein. He submits that these proceedings are initiated only for stalling the proceedings and though in 2012, a decree is passed, they are not able to enjoy the fruits of the decree even till now. 5. Having heard the learned counsel on either side,
Decision
ORDER (i) The Writ Petition is disposed of, directing the trial Court to conduct an inquiry and the petitioner shall co-operate and complete the enquiry within a period of 2 months from the date of receipt of the copy of this order. (ii) As far as auction of the properties are concerned, the same shall go on. - 7 - NC: 2025:KHC:4138 WP No. 49482 of 2019 (iii) All IAs., in this Writ Petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE KA List No.: 1 Sl No.: 40 CT: BHK