Karnataka High Court
Smt Rathnamma vs Nagaraju on 14 September, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:33384
WP No. 11186 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 11186 OF 2021 (GM-CPC)
BETWEEN:
SMT. RATHNAMMA
W/O SIDDALINGAPPA
AGED 55 YEARS
R/AT NAVILADAKU VILLAGE
PURAVARA HOBLI-572175
MADHUGIRI TALUK.
...PETITIONER
(BY SRI. SANGAMESH R B, ADV.)
AND:
1. NAGARAJU
S/O LATE SUBBAIAH
Digitally signed by AGED ABOUT 58 YEARS
A K CHANDRIKA
R/AT NAVILADAKU VILLAGE
Location: High PURAVARA HOBLI-572175
Court of Karnataka
MADHUGIRI TALUK.
2. SIDDALINGAIAH
S/O LATE SUBBAIAH
AGED 63 YEARS
3. SMT. GOWRAMMA
W/O LATE SUBBAIAH
AGED 73 YEARS
4. SMT. SIDDALINGAMMA
W/O LATE PUTTARAJU
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NC: 2023:KHC:33384
WP No. 11186 of 2021
D/O LATE SUBBANNA
AGED 43 YEARS
NO.2, 3 & 4 ABOVE ARE
R/AT NAVILADAKU VILLAGE
PURAVARA HOBLI-572175
MADHUGIRI TALUK.
...RESPONDENTS
(BY SRI. KARTHIK S, ADV. FOR
SRI PRAVEEN KUMAR, ADV. FOR R1
R2 TO R4 ARE SERVED & UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DATED 18.02.2021 PASSED IN FDP NO.11/2018 ON IA
5 FILED BY THE PETITIONER UNDER ORDER 1 RULE 10 READ
WITH SECTION 151 OF CPC (ANNEXURE-A) AND ALLOW THE
APPLICATION ON IA NO.5 FILED BY THE PETITIONER HEREIN
UNDER ORDER 1 RULE 10 READ WITH SECTION 151 OF CPC,
IN FDP NO.11/2018, ON THE FILE OF PRL.CIVIL JUDGE AND
JMFC, MADHUGIRI.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/impleading applicant in FDP No.11/2018 is before this Court, challenging order dated 18.02.2021 dismissing I.A.No.5 filed by petitioner/impleading applicant under Order I Rule 10 of CPC refusing to permit her to come on record as additional respondent.
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NC: 2023:KHC:33384 WP No. 11186 of 2021
2. Heard learned counsel Sri.R.B.Sangamesh for petitioner and learned counsel Sri.Karthik S., for Sri.Praveen Kumar, learned counsel for respondent No.1. Perused the writ petition papers.
3. Learned counsel for impleading applicant would submit that respondent No.1 filed suit in O.S.No.90/2010 for partition which was decreed on 21.11.2015 against which, R.A.No.5042/2019 was filed and the said R.A. was dismissed affirming the judgment and decree passed by the trial Court. Thereafter, respondent No.1 herein initiated Final Decree Proceedings No.11/2018. In the meanwhile, respondent No.2 herein executed a registered Gift Deed dated 30.01.2017 in favour of the petitioner herein/impleading applicant, wife of 2nd respondent in respect of suit schedule item Nos.1 and 2 properties. The petitioner/impleading applicant filed application under Order I Rule 10 of CPC to come on record as additional respondent in FDP stating that she has acquired right over item Nos.1 and 2 of suit schedule property by virtue of Gift -4- NC: 2023:KHC:33384 WP No. 11186 of 2021 Deed dated 30.01.2017. The trial Court, under impugned order rejected the said application observing that the transaction is during the pendency of the proceedings and the same is hit by principles of list pendense under Section 52 of Transfer of Property Act. Learned counsel for the petitioner Sri.Sangamesh would submit that the petitioner/impleading applicant is a proper party but may not be necessary party, in view of acquiring right under the Gift Deed dated 30.01.2017. Learned counsel would submit that the petitioner/ impleading applicant would be proper party only to the extent of seeking allotment of the property gifted to her in FDP proceedings. To that extent, learned counsel seeks permission to the petitioner to come on record as additional respondent. Further, learned counsel would submit that finding of the trial Court that since the transaction is during the pendency of R.A., the petitioner/impleading applicant would not be necessary party is not correct. Thus he prays for allowing the writ petition.
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NC: 2023:KHC:33384 WP No. 11186 of 2021
4. Learned counsel Sri.Karthik would support the order passed by the trial Court and submits that the impleading application/petitioner herein is neither necessary nor property party to the FDP. He submits that the 2nd respondent husband of impleading application is party to the FDP and he would protect interest of his wife/petitioner herein. Further, learned counsel would submit that without acquiring right over item No.1 and 2 of the suit schedule property, the 2nd respondent could not have gifted the property in favour of his wife who is petitioner herein. Thus, he prays for dismissal of the writ petition.
5. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the petitioner has not made out any ground to interfere with impugned order rejecting petitioner's application filed under Order I Rule 10 to come on record as additional respondent in FDP.
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6. Admittedly, respondent No.1 filed O.S.No.90/2010 for partition which was allowed under judgment dated 21.11.2015 and the same is confirmed in R.A.No.5042/2019. Admittedly, execution of Gift Deed by 2nd respondent herein in favour of the petitioner, wife of 2nd respondent is during the pendency of the proceedings. Moreover, to protect the interest of the petitioner herein, her husband 2nd respondent is before Court in FDP. Thus, I am of the view that there is no reason to interfere with the order of the trial Court. Accordingly, the petition stands rejected.
Sd/-
JUDGE MPK CT:bms List No.: 1 Sl No.: 53