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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24^TH DAY OF FEBRUARY, 2023

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

R.S.A NO. 1579 OF 2014(PAR)

BETWEEN:

1. H M VASANTHA MOHAN SHETTY

AGED ABOUT 58 YEARS,

S/O LATE MUDDANA SHETTY & NEERADH HEGGADTHI

2. SMT.SHARIN

AGED 31 YEARS,

D/O H.M. VASANTHA MOHAN SHETTY

3. SACHIN

AGED 28 YEARS,

S/O H.M. VASANTHA MOHAN SHETTY

4. SAHANA

AGED 26 YEARS,

D/O H.M. VASANTHA MOHAN SHETTY

5. H ASHOK MOHAN SHETTY

AGED 51 YEARS,

S/O LATE MUDDANA SHETTY &

NEERADH HEGGADTHI

6. H.M. CHANDRA MOHAN SHETTY

AGED ABOUT 49 YEARS,

S/O LATE MUDDANA SHETTY &

NEERADH HEGGADTHI

ALL ARE R/AT PALAJE HOUSE, PERDOOR VILLAGE,

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POST PERDOOR, UDUPI TALUK,

UDUPI DISTRICT-576124

...APPELLANTS

(BY SRI.SHARATH S GOWDA, ADVOCATE)

AND:

SYNDICATE BANK MANIPAL

HAVING ITS HEAD OFFICE AT MANIPAL,

REPRESENTED BY ITS PERDOOR BRANCH

SENIOR MANAGER AND GPA HOLDER

DEVENDRA NAIK,

AGED ABOUT 49 YEARS,

RESIDING AT PERDOOR VILLAGE,

UDUPI TALUK, UDUPI DISTRICT-576124

…RESPONDENT

(BY SRI.DEEPAK.K.DAVE, ADVOCATE)

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE

JUDGEMENT & DECREE DTD 13.8.2014 PASSED IN R.A.NO.4/2008

ON THE FILE OF THE PRL. DISTRICT JUDGE, UDUPI, DISMISSING

THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD

30.11.2007 PASSED IN OS.NO.31/2007 ON THE FILE OF THE PRL.

CIVIL JUDGE (SR.DN) UDUPI.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 22.02.2023, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

The captioned second appeal is filed by unsuccessful

defendants who have questioned the concurrent findings of

the Courts below wherein suit for partition filed by plaintiff-

Bank based on a money decree and consequent, auction

purchase by the Bank is decreed by both the Courts. The

defendant is in second appeal.

2.

For the sake of brevity, the parties are referred to

as per their rank before the trial Court.

3.

The plaintiff-Bank has instituted the present suit

seeking relief of partition by metes and bounds to allot 3/4^th

share. The plaintiff-Bank has filed the present suit by

contending that suit schedule properties along with other

properties are ancestral properties of defendants family. The

defendant Nos.2 to 4 are the children of defendant No.1. The

defendant Nos.1, 5 and 6 and another availed loan from the

plaintiff-Bank and offered the suit property by way of security.

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On

account

of

default,

plaintiff

instituted

suit

in

O.S.No.107/1979 and the said suit was decreed and plaintiff

filed execution petition bringing in sale of properties which

were offered as security. The plaintiff-Bank being a decree

holder participated in auction proceedings and purchased the

properties which were put in auction and the sale was

confirmed and sale certificate was issued on 17.01.1995.

Since plaintiff-Bank purchased undivided interest in schedule

‘A’ property and since the defendants who are defaulters failed

to divide the properties and handover possession of 3/4^th

share in schedule ‘A’ property, present suit is filed.

4.

The defendants, on receipt of summons, tendered

appearance and filed written statement and contended that

claim of plaintiff is barred by limitation. The defendants also

contended that sale certificate is null and void and there is no

cause of action to file the present suit.

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5.

The plaintiff-Bank and defendants to substantiate

their respective claim have let in oral and documentary

evidence.

6.

The trial Court while examining the sale certificate

vide Ex.P-15 held that the plaintiff is entitled to seek

possession of 3/4^th share and accordingly proceeded to decree

the suit drawing preliminary decree and granting 3/4^th share

to the plaintiff-Bank.

7.

Feeling aggrieved by the judgment and decree of

the trial Court, the defendants preferred appeal before the

Appellate Court. The defendants raised severa