Karnataka High Court
K.S. Krishnoji Rao vs Yeshwanthpur Bawasara on 2 December, 2016
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2016
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
M.F.A. NO. 7559/2016 (CPC)
BETWEEN:
K. S. KRISHNOJI RAO,
S/O LATE K. R. SUBBA RAO,
AGED ABOUT 72 YEARS,
R/AT AMBA BHAVANI TEMPLE,
DODDABETTAHALLI VILLGE,
JYOTHI NAGAR, HESARAGHATTA ROAD,
M. S. PALYA, JALAHALLI EAST,
BANGALORE - 560 097. ... APPELLANT
(BY SRI V. SRINIVAS, ADVOCATE)
AND:
1. YESHWANTHPUR BAWASARA
AMBA BHAVANI CHARITABLE TRUST,
A REGISTERED TRUST UNDER
THE INDIAN TRUST ACT, HAVING
ITS REGISTERED OFFICE AT NO. 10/1,
2ND FLOOR, 7TH CROSS, SAMPIGE ROAD,
BANGALORE - 560 003.
REP BY ITS TRUSTEES:
1(a) SRI N. SREENIVASA ROA PISSESY,
S/O LATE VENKOBA RAO,
AGED ABOUT 46 YEARS,
R/AT NO. 1361,
INDIRANAGAR MAIN ROAD,
INDIRANAGAR NELAMANGALA,
BANGALORE - 562 123
1(b) SRI SHESH RAO SHINGOTE,
S/O SRI AKNATH,
2
AGED ABOUT 59 YEARS,
R/AT NO. 42, JYOTHI II MAIN,
8TH CROSS, CHAMUNDESHWARI
LAYOUT, VIDYARANYAPURA,
BANGALORE - 560 097.
2. SRI K. K. GIRISH PUTANE,
S/O K. S. KRISHNOJI RAO,
AGED ABOUT 46 YEARS,
3. SRI K. RAKESH PUTANE,
S/O K. S. KRISHNOJI RAO,
AGED ABOUT 43 YEARS,
4. SRI K. MAHESH PUTANE,
S/O K. S. KRISHNOJI RAO,
AGED ABOUT 41 YEARS,
RESPONDENTS R-2 TO 4
ARE R/AT AMBA BHAVANI TEMPLE,
DODDABETTAHALLI VILLGE,
JYOTHI NAGAR, HESARAGHATTA
ROAD, M. S. PALYA,
JALAHALLI EAST,
BANGALORE - 560 097. ... RESPONDENTS
(BY SRI P. B. RAJU, ADV. FOR R-1 [a & b])
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC., AGAINST THE ORDER DATED 21.10.2016 PASSED
ON IA IN O.S.NO.1065/2015 ON THE FILE OF THE 2ND
ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, DISMISSING IA FILED U/O.39
RULE 4 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is preferred by the defendant No.1 against the order passed by the learned II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, in OS No. 1056/2015 on IA filed under Order 39 Rule 4 of CPC.
2. It is evident from the records that the plaintiff has filed a suit for specific performance of the agreement alleged to have been executed by the defendant No.1 for valuable consideration of Rs.80 lakhs and received totally a sum of Rs.30 lakhs in advance. The plaintiff interalia has sought for an order of injunction against the defendants restraining the defendants from alienating the suit property pending disposal of the suit.
3. It appears, the Trial Court has granted an order of injunction restraining the defendant No.1 from alienating the suit schedule property. In pursuance of the same, the defendant No.1 has filed an application for vacating the said injunction order under Order 39 Rule 4 of CPC. The Trial Court after considering the 4 facts and circumstances of the case and after hearing both the parties, has passed an order restraining the defendant from alienating the property for equitable relief. Therefore, it cannot be vacated. Consequently, the order passed under Order 39 Rule 4 of CPC has been rejected.
4. The order discloses that the Trial Court has come to the conclusion prima facie that the plaintiff has produced the said agreement of sale and considering the contents of the said application in order to avoid multiplicity of proceedings, the Trial Court has passed an equitable order restraining the defendant from alienating the property. Section 52 of the Transfer of Property Act also imposes responsibility on the defendant to maintain the status with regard to the alienation of the property pending disposal of the suit. If he alienates the property, it is subject to the decision of the suit. However, the order does not debar the defendant from making any application to the Court seeking permission, if necessity arises for alienating the property. Therefore, he can make such an application 5 before the Trial Court if necessary. If he wants to alienate the property in such an event, the Trial Court has to give opportunity to the other side and pass an appropriate order in this regard. In the above said circumstances, I do not find any strong reason to interfere with the order passed by the Trial Court on IA filed under Order 39 Rule 4 of CPC.
5. With the above said observation, the appeal filed by the appellant is devoid of merit and the same is liable to be dismissed. Accordingly, dismissed.
In view of the dismissal of the main appeal, the pending IA does not survive for consideration. Accordingly, the same stands dismissed.
Sd/-
JUDGE PL*