Karnataka High Court
Smt Saraswathi Shetty vs Smt Lakshmi Shetty on 5 February, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF FEBRUARY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.55151/2017(GM-CPC)
BETWEEN:
SMT. SARASWATHI SHETTY,
W/O SHRI KRISHNAPRASADH SHETTY,
AGED ABOUT 55 YEARS,
CRYSTAL APARTMENT FLAT NO.205,
2ND FLOOR, KODIALGUTHU WEST,
MANGALURU-575004.
DAKSHINA KANANDA DISTRICT.
... PETITIONER
(BY SRI K. SREEDHAR, ADVOCATE)
AND:
SMT. LAKSHMI SHETTY,
D/O LATE THYAMPANNA SHETTY,
AGED ABOUT 51 YEARS,
R/O OLATHADKA HOUSE,
ARAYAPU VILLAGE,
PUTTUR TALUK,
DAKSHINA KANNADA DISTRICT.
... RESPONDENT
......
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 18.11.2017 IN R.A.NO.2/2012 ON THE
FILE OF SENIOR CIVIL JUDGE AND ACJM, PUTTUR ON
I.A.NO.2 VIDE ANNEXURE-E AND DIRECT TO CONTINUE
THE FDP PROCEEDINGS INITIATED IN 4/2012.
2
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff/decree holder filed the present writ petition against the order dated 18.11.2017 made in R.A.No.2/2012 on the file of the Senior Civil Judge and ACJM, Puttur, allowing I.A.No.2 filed by the appellant No.2/defendant No.2 under Order XLI Rule 5 r/w Section 151 of Code of Civil Procedure, thereby, staying the operation of the judgment and decree dated 04.11.2011 made in O.S.No.78/2008, on the file of the Prl. Civil Judge and JMFC, Puttur, until further orders.
2. The petitioner/plaintiff filed suit in O.S.No.78/ 2008 for the relief of partition and separate possession against the defendants. After contest, the Trial Court, by the judgment and decree dated 04.11.2011, decreed the suit holding that the plaintiff and defendants are entitled to 1/3rd share in item Nos.1 to 5 of plaint 'A' 3 schedule property with reference to good and bad soil, and directed that there shall be separate enquiry regarding the calculation of future mesne profits. However, the relief for declaration that the plaintiff had acquired ownership right over plaint 'B' schedule subject to right of life estate of first defendant by virtue of Will, was dismissed.
3. Aggrieved by the said judgment and decree, the defendants filed R.A.No.2/2012. The plaintiff has not filed any appeal against the dismissal of the suit with regard to the relief of declaration.
4. During pendency of the appeal, the petitioner/ decree holder filed FDP No.7/2015 to implement the decree. Therefore, the respondent/defendant who is the appellant in R.A.No.2/2012 filed an application under Order XLI Rule 5 r/w Section 151 of Code of Civil Procedure seeking to stay the operation of the judgment and decree passed by the Trial court. The lower 4 appellate Court, considering the application and objections, by the impugned order dated 18.11.2017, allowed the application. Hence the present writ petition is filed.
5. I have heard the learned counsel for the petitioner.
6. Sri K.Sreedhar, learned counsel for the petitioner/ plaintiff/decree holder, vehemently contended that the impugned order passed by the lower Appellate Court granting stay of the judgment and decree passed by the Trial Court, after a lapse of more than five years is erroneous. Though the appeal was filed in the year 2012, application for stay is filed on 10.02.2014 and therefore, the lower appellate Court ought to have rejected the application, and should have decided the appeal on merits. Therefore, learned counsel sought to quash the impugned order by allowing the writ petition. 5
7. Having heard the learned counsel for the petitioner, it is not in dispute that the present petitioner filed suit for partition and separate possession in respect of the suit schedule properties. After contest, the suit came to be decreed in part. Aggrieved by the said judgment and decree, the defendants filed an appeal before the lower appellate Court. In the meanwhile, the plaintiff/decree holder filed FDP No.7/ 2015 to implement the decree. The defendants filed an application under Order XLI Rule 5 of Code of Civil Procedure in R.A.No.2/2012 seeking to stay the operation of the judgment and decree passed by the Trial Court. The lower appellate Court, considering the application and the objections recorded a finding that, "In I.A.No.2 it is prayed that if the FDP decree is drawn by the lower court, the appeal will become useless and appellants/ defendants will be put to great hardship. Therefore, prayed to allow the I.A.No.2. Since the judgment and decree passed by the lower Court in O.S. 6 No.78/2008 is now under challenge before this Court in the present R.A. and there is a serious dispute between the parties regarding the execution of two Wills set up by the parties and if this I.A.No.2 is not allowed, the very purpose of filing this R.A. will be defeated. Therefore, there being directions of both sides to address their main arguments in the appeal at the earliest point of time and till such time, if I.A.No.2 is allowed, no hardship will be caused to anyone". Accordingly, allowed the application.
8. It is not in dispute that the suit came to be decreed on 04.11.2011. The Final Decree Proceeding was initiated in the year 2015 and application under Order XLI Rule 5 of Code of Civil Procedure for stay was filed on 10.02.2014. The lower appellate Court, considering the application and the objections, passed the impugned order, exercising discretionary power under Order XLI Rule 5 of Code of Civil Procedure. 7 Such a discretionary order cannot be interfered by this Court. As rightly held by the lower appellate Court, if the interim stay is not granted, the decree will be implemented. Therefore, the lower appellate Court was justified in passing the impugned order. The petitioner has not made out any ground to interfere with the impugned order, in exercise of powers under Article 227 of the Constitution of India. Writ Petition is dismissed.
9. However, taking into consideration the fact that the Regular Appeal was filed in year 2012, the lower appellate Court is directed to expedite the Appeal, subject to co-operation of the parties to the lis.
Sd/-
JUDGE kcm