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2023 Supreme(Online)(KAR) 20506
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MFA No. 11438 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 11438 OF 2011 (CPC)
BETWEEN:
SRI B H UDAYA PAI
S/O B H GANAPATH PAI
AGEDA BOUT 40 YEARS
R/AT MAIN ROAD
P O PANEMANGALORE-574231
BANTWAL TALUK (DK).
…APPELLANT
(BY SRI. M SUDHAKAR PAI.,ADVOCATE)
AND:
1.
VAMANA NAYAK
S/O DR P VISHWANATHA NAYAK
AGED ABOUT 15 YEARS
MINOR REP BY HIS NATURAL GUARDIAN
MOTHER SMT DR JAYAMALA VISHWANATH
AGED 46 YEARS
W/O DR P VISHWANATHA NAYAK
R/AT BONDALA HOUSE
PANEMANGALORE VILLAGE
P O PANEMANGALORE574231
BANTWAL D K
Digitally signed
by
DHANALAKSHMI
MURTHY
Location: High
Court of
Karnataka
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MFA No. 11438 of 2011
2.
SMT VINODA @ VIJAYALAKSHMI
W/O LATE VARADARAYA NAYAK
AGED ABOUT 79 YEARS.
3.
SRI VASUDEVA NAYAK
AGED ABOUT 54 YEARS
4.
DR VISHWANATHA NAYAK
AGED ABOUT 49 YEARS
5.
SRI VENUGOPALA NAYAK
AGED ABOUT 45 YEARS
R2 TO R5 ARE R/AT NO.18-137
V V NIVESHAN MAIN ROAD
P O PANEMANGALORE0-574231
BANTWAL TALUK DK.
…RESPONDENTS
(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE R1:
NOTICE TO R2 TO R5 ARE SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 2.11.2011 PASSED ON IA NO.2
IN O.S.NO.2/2010 ON THE FILE OF SENIOR CIVIL JUDGE &
JMFC, BANTWAL, DAKSHINA KANNADA, PARTLY ALLOWING IA
NO.2 FILED U/ORDER 39 RULES 1 & 2 R/W SEC 151 OF CPC
FOR T.I.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 11438 of 2011
The Court has the power to modify an order of temporary injunction in the interest of justice.
Headnote:
INJUNCTION - TEMPORARY INJUNCTION - MODIFICATION - INTEREST OF JUSTICE - The order dated 2.11.2011 passed by the Trial Court on I.A.No.II deserves to be modified in the interest of justice.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession and also filed an application for grant of an order of temporary injunction against the defendants restraining them from meddling with the plaint properties by alienation or creating charge or altering the status quo, pending disposal of the suit. The said application was allowed by the Trial Court. Being aggrieved by the same, the defendant No.5, who claims to have purchased item No.5 in ‘B’ schedule property in auction, filed this appeal.
Finding of the Court:
The Court found that the order dated 2.11.2011 passed by the Trial Court on I.A.No.II deserves to be modified in the interest of justice.
Issues: Whether the order dated 2.11.2011 passed by the Trial Court on I.A.No.II deserves to be modified in the interest of justice.
Ratio Decidendi: The Court held that the order dated 2.11.2011 passed by the Trial Court on I.A.No.II deserves to be modified in the interest of justice.
Final Decision: The Court modified the order dated 2.11.2011 passed by the Trial Court on I.A.No.II in O.S.No.2/2010 before the Senior Civil Judge and JMFC, Bantwal, D.K. The plaintiff and defendant No.5 are directed to maintain status-quo, as it exists today, in respect of land measuring 0.50 cents in Sy.No.29/2, Panemangalore Village, Bantwal Taluk, till the disposal of the suit.
This appeal under Order 43 Rule 1(r) of the CPC is
filed by the defendant No.5 in O.S.No.2/2010 before the
Senior Civil Judge and JMFC, Bantwal, D.K., challenging
the order dated 2.11.2011 passed on I.A.No.II filed under
Order 39 Rules 1 and 2 read with Section 151 of CPC.
For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
The plaintiff has filed the suit in O.S.No.2/2010
before the Senior Civil Judge and JMFC, Bantwal, D.K. for
partition and separate possession. He has also filed I.A.II
under Order 39 Rules 1 and 2 read with Section 151 of
CPC seeking for grant of an order of temporary injunction
against the respondent Nos.2 to 5/defendants restraining
them, their men, servants, agents etc. from in any way
meddling with the plaint ‘B’ shedule properties by
alienation or creating charge or altering the status quo,
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pending disposal of the suit. The said application has been
allowed by the Trial Court by order dated 2.11.2011. Being
aggrieved by the same, the defendant No.5, who claims to
have purchased item No.5 in ‘B’ schedule property in
auction, has filed this appeal.
This Court by order dated 4.1.2012 granted
stay
in
respect
of
0.50
cents
in
Sy.No.29/2
of
Panemangalore Village, Bantwal Taluk for a period of eight
weeks. The said interim order was extended from time to
time and later it was made absolute. The interim order
operates from last 11 years.
Under the circumstances, in the interest of justice,
the order dated 2.11.2011 passed by the Trial Court on
I.A.No.II deserves to be modified.
Accordingly, the order dated 2.11.2011 passed
by the Trial Court on I.A.No.II in O.S.No.2/2010 before the
Senior Civil Judge and JMFC, Bantwal, D.K., is modified.
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The plaintiff and defendant No.5 are directed to
maintain status-quo, as it exists today, in respect of land
measuring 0.50 cents in Sy.No.29/2, Panemangalore
Village, Bantwal Taluk, till the disposal of the suit.
With the above observation, the appeal is disposed
of.
Sd/-
JUDGE
DM
List No.: 1 Sl No.: 45
