Karnataka High Court
Nagarathnamma vs The Syndicate Bank on 1 September, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1" DAY OF SEPTEMBER, 2010,;
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA'
WRIT PETITION N0.22357/261-9
BETWEEN:
Nagarathnamma,
Aged about 58 years,
W/0. late Laxman,
R/0. Shariff Galii,
Chikmagalur. _
' ...~'.. PETITIONER
1. The:':3yhcjicaté '
Chikmaqalur Branch, '
Chikmagalur. A
.1'/»'}'\{«£).;F?Of!'a€ieet3TV""«... .....
' «_S/0. "M.B_fi3-.eve Gowda,
' .i\'ge(£v..,abr_Ju{:'34 years,
" . '«Swath,E'*~A.ge.hci'es, Gundappa Street,
' A Ci1ikma'ga!n;'r.
Gajafiana M. Shet,
' .. ,Aged=~about 34 years,
" V S/.0. Maruthi Shet,
"D:-*:'vE Jeweliers, M.G.Road,
Chikmagalur.
4. Yashodamrna,
Aged about 53 years,
W/o. Billiyappa,
R/at Shariff galli,
Chikmagaiur.
(By Sri A.Veni<atachalaiah, Adv. for R1)
... REs--i§o:&i'o'E;*in
This writ petition is fiied under
the Constitution of India, praying to',qu'a_sh the _order. dated*._
15.06.2010 passed on I.A'.E\l_o.4 "in " O.Sai.No;w1.91/2004
passed by the Court of the Sen-i__or._Civil Viudgeg, 'Chii;rn'a'g'alur
(produced as Annexur ---- A)"-.and_ consequently ailow
I.A.|\Eo.4.
This petition coming on hearing in 'B'
group this day, the Court..m_ade'the fo'i-low~ir;ig'.'
Petiltiio.f{¢~r"'aE:ong w:it'hV'oltheersvliied o.s No.121/2002
againstv:'i«the;2""v:for cancellation of sale deed
and for permanent_ injun.;r'_:'tion. The suit was dismissed.
_R.Ay_~Nio.5_7,'2%007"wasfiled against the said decree. Appeal
was aliowed'~in~ part and the matter was remanded to the
tr'i'al"<:oiirt it-lV--"orVg'1r'-resh consideration in the light of amended
issue i\lo'.3.,.which was re~casted. 2"" respondent fiied MSA
"..jiiNo.'S;(,Z009 against the said remand order, which was aliiowed in part and the judgment under cialienge was (I--
modified. The trial court has answered the re-casted issue No.3 in the negative.
2. 2"" respondent has availed cash credit from the 15' respondent. Property has been the 2"" respondent in favour of 13' respondyen... tirriei"
of availing the ioan facility. Since t=here..isf1defa.uit"i-nl .' of repayment, 15* respondent instituted respondents 2 to 4 and anothe'r"».p'er.son 2's"eel<ing decree for sum of Rs.6,44,46CAi/:§y~--wiiEVh i--nte'res:t"'«and on failure to pay the amount,_a decre.e.:.d'irectin_g of 'B' and 'C' schedu:l'e'%plrop:e5rty re'al.ifsatio'nV'"anVd for other reliefs. The petitioner the VV3*;F3':'i«;ilei'e_n'dant in the said suit. She filed LA No.2 further proceedings in 0.5 _;uo.vi,.iéi1/;_2oo.4_tiufheidesposal of MSA No.5/2009. Since the off, LA No.2 was dismissed as infruichtuougsiliiIécetitioner/3r" defendant, filed LA No.4 under ".,,___",Section_'f151 of C.P.C to stay further proceedings of % i~ffol.s.'N_o.191/2oo4 till the disposal of R.A.No.57/2007. The Dlitiifltiff bank filed objections and has opposed the prayer. /:3 The trial court did not find merit in LA No.4 and hence has dismissed the same by its order dated 15.06.220.10. Challenging the said order, petitioner/3*" defend_'ant':'4.hVa's~2 filed this writ petition.
3. Sri Manmohan Mm"le«a__rned-:' --Al.:_a'd_'jJ.o'ca'teV"« appearing for the petitioner contende_d:'that, th_etrv§a'~l has committed irrationality and?"i!.|ega.lit~,4_V_infpassivng the impugned order. He contende*d"'that;, g2"3-d._'respon'dént is not the owner of the property mortgaged the same in favoa.ir:'--0f 5:._he.:pi'.ain«tiFf1'.i3an_l§:falnd the property being psui5j'eet};neE'ter °ogf* R.A'.N'oi.%d57/2007 filed by the petitioner, "when Vaitlowed;._:l't-h.e..---bank cannot proceed against the propertyvin' qu'Vest'i.on;"isince the relief prayed in O.S vy'h'i'ch*~"is not the subject matter of .i:n"--uR.A.No.57/2007 which is for canceiiation oflsalde d_eedI._a;nd permanent injunction. Learned counsel "..sul3mittedt. that, bank has sought for sale of '8' schedule '*:l.pro:p'e*rty on faiiure of defendants 1 & 2 in the suit in paying the amount and if the said property is soid, the 'V. petitioner would suffer irreparable loss and hardship and there would be muitipiicity of proceedings and hence, the prayer in the appiication ought to have been ai|oyyie_d'i.in exercise of inherent power of the court under _ of C.P.C.
4. The trial court has noticed ithiaftlthe-..s'uit"before it it is only for recovery of loan-.__.avaiVl'e.d"by 1.""'d;e.fend_ant; whereas the proceedings in which has lead to RA No.S7/2007'./,_i5ieingfifor»cancel'lation of sate deed and injunction, no_ groun.d.s:._hav'e Liee'n'r.rn'a'de"out attracting the requ'ireinseij;ts éunder'Sge-ction"'i'Gfiof C.P.C to stay further proceed'i-nglsitiii F.{.A.No.'S7/2007. 4:5". Iuhay_e'peruse.d the writ papers. The point for lllll H No.4 fi/ed by the petitioner under seems 151 C. p.c seeking stay of the suit till aiisposal of RA No.57/2007, was maintainable? The object underlying Section 10 CPC is to _,prevent courts of concurrent jurisdiction from iv "i simuitaneousiy trying two paraiiel suits in respect of the same matter in issue. The fundamental test to."~ati:ract Section 10 CPC is, whether on final decision . in the previous suit, such decision...w,ould _~opera'te "as'_'rVes_ judicata in the subsequent suit. Sections applies :on'ii*,< cases where the whole of thesubjectwmatter,"iAr~i.i,_:i3.@t,h-5the suits is identical, as is evidentV_froAm_the vrordsiynffthré matter in issue is directly _ issue" in the previous instituted sui't';':.- I'; 'J"directiy and substantiaiiyii-ii .'c(1J'Vfl:'t'radistinction to the words issue". Therefore, for appiying has to be identity of the matter in isosuievin'-bo'th i.e., whole of the sub3'ect~ matter"Vin.both "thelisluits shouid be identical. case on hand, the petitioner has 'i'rastitute'd'illitvheosulit for cancellation of saie deed and for
--V pern*i'anevnt"'i'njunction against the 2*" respondent. The disrriissed and an appeai preferred is pending.
-'ThVe'"suit instituted by the 15' respondent--bani< is for \.
/ vi recovery of money and to proceed against the mortgaged property to realise the decretal amount. "i"he4,su»l:):'ject matter of the two suits is entirely distinct The cause of action of the two suits randy' different. Hence, Section 10 of is it
8. In the case of MANOHAR.__L'/tic CHOi?~_RA».VS. BAHADUR RAE) RAJA SET!-E Hiimmt, reported jcs,.nV"'Ali'¥i"'1'é62 it SC 527, it has been heici.t_hat,,<" = V' "inherent jurisdictiorrof f1_LQfi1}"_la.k€ orders ex debitojustittae is 1,1fidouJg+.e'a1y..a.f£iirm.§:d'by Section 151 CPC, but_.:th§{.t~'j_11ris--dietion <§anriot'i:e" exercised so as to of Code. Where the Code deals' expressly .\V\fith'a,,4'1'3Jarticu1ar matter, the provision shotiidut1orrria1Ijr.i3e.regarded as exhaustive". in thé'ca.se'ora hand, as already stated, Section 106?. application and hence, it is not open to th'e.petitVion7e'r have invoke Section 151 CPC for grant of relief. .. S"
it Since the matter in issue in the two suits are ' and separate, the trial court is justified in passing \3/ ,a the impugned order, which in the background of thefacts and circumstances of the case, is neither irrational'4«..h'er iliegai.
In the result, the writ petetio5 Ai's4 §ievor:¢ -of .r.r1'erét: é'r]{t_i shali stand dismissed. However, there shali be.".n¢"Gi'der as to costs. » ' ,_