Sri B Suresh vs Smt Mamatha on 10 January, 2017

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Karnataka High Court

Sri B Suresh vs Smt Mamatha on 10 January, 2017

Bench: B.V.Nagarathna

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF JANUARY, 2017

                       BEFORE

       THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

          WRIT PETITION No.434/2017(GM-CPC)

BETWEEN:

SRI.B.SURESH
S/O T.C.BASAVARAJU
AGED ABOUT 49 YEARS
R/O NO. 182, 6TH CROSS
'G' BLOCK, RAMAKRISHNANAGAR
MYSURU
TALUK & DISTRICT
MYSURU - 570 023.
                                        ...PETITIONER
(BY SRI. R.B.ANEPPANAVAR, ADVOCATE)

AND:

1.     SMT.MAMATHA
       W/O LATE B.MANJUNATH
       AGED ABOUT 39 YEARS
       R/O MIDDLE STREET
       MUDIGUNDAM
       KOLLEGAL TALUK
       CHAMARAJANAGARA DISTRICT
       PIN - 570 023.

2.     SRI.SMT T.S.BHRAMARAMBA
       W/O LATE T.C.BASAVARAJU
       AGED ABOUT 66 YEARS
       R/O TALAKADU VILLAGE
       T.NARASIPURA TALUK
                             2



     MYSURU DISTRICT - 570 023.
                                         ...RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 09.12.2016 PASSED BY THE V
ADDL.I CIVIL JUDGE, AT MYSURU IN MIS.PETITION
6/2014 AT ANNEXURE-D ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                         ORDER

Petitioner is respondent No.2 in F.D.P.No.2/2003. That proceeding has been initiated by the first respondent herein pursuant to the judgment and decree passed by the trial Court in O.S.No.861/2001, granting a decree of partition and separate possession of 1/3 share in the suit schedule property. When the final decree proceeding was instituted by the first respondent, notice was ordered on the petitioner herein. But by order dated 12.4.2011, the trial court has placed the petitioner herein ex-parte and has continued with the final decree proceedings. Being aggrieved by the order dated 12.4.2011, the petitioner herein filed a petition numbered as Mis.Petition No.6/2014 seeking recall of the order dated 12.4.2011. That petition 3 is filed under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (CPC). That application has been dismissed by the impugned order dated 9.12.2016. Being aggrieved by the said order, this writ petition has been preferred.

2. I have heard learned counsel for the petitioner.

3. During the course of hearing, it is noted that the application filed by the petitioner under Order IX Rule 13 read with Section 151 of the CPC was not at all maintainable. If at all, the petitioner could have availed the remedy under Order IX Rule 7 of the CPC.

4. In the circumstances, the dismissal of the application filed under Order IX Rule 13 of the CPC is not interfered with. Liberty is given to the petitioner to file an application under IX Rule 7 of the CPC, in case the said final decree proceeding is pending. If such an application is filed, the trial Court is directed to consider the same in 4 accordance with law and without being influenced by the impugned order dated 9.12.2016 on merits.

5. With the aforesaid liberty, writ petition is dismissed.

Sd/-

JUDGE Msu.

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