Back
2023 Supreme(Online)(KAR) 14912
- 1 -
NC: 2023:KHC:21653
MFA No. 3304 of 2023
C/W MFA No. 3768 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.3304 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.3768 OF 2023 (CPC)
IN M.F.A.NO.3304 OF 2023:
BETWEEN:
SRI MIR MOHAMMED HAJI @ LAIQUE,
S/O LATE MIR NAZEER AHAMED,
AGED ABOUT 66 YEARS,
R/O NO.513, 7TH MAIN, 3RD CROSS,
1ST STAGE, 5TH BLOCK, HBR LAYOUT,
KALYAN NAGAR POST,
BANGALORE 560 043.
…APPELLANT
(BY SRI YOGESH V. KOTEMATH, ADVOCATE FOR
SRI VIRUPAKSHAIAH P.H., ADVOCATE)
AND:
1.
SMT. HASEENA,
W/O LATE MIR SHAFEEQ AHMED,
AGED ABOUT 46 YEARS.
2.
SMT. ASMA TAJ,
D/O LATE MIR SHAFEEQ AHMED,
AGED ABOUT 28 YEARS.
3.
SMT. HUSNA TAJ,
D/O LATE MIR SHAFEEQ AHMED,
AGED ABOUT 27 YEARS.
Digitally signed
by SHARANYA T
Location: HIGH
COURT OF
KARNATAKA
- 2 -
NC: 2023:KHC:21653
MFA No. 3304 of 2023
C/W MFA No. 3768 of 2023
4.
SMT. NAJMA TAJ,
D/O LATE MIR SHAFEEQ AHMED
AGED ABOUT 26 YEARS.
5.
SMT. MERAJ TAJ,
D/O LATE MIR SHAFEEQ AHMED,
AGED ABOUT 25 YEARS.
6.
SMT. ALFIA TAJ,
D/O LATE MIR SHAFEEQ AHAMED,
AGED ABOUT 24 YEARS.
ALL ARE R/AT NO 139, TAYALUR,
MULBAGAL TALUK, KOLAR DISTRICT,
TAYALUR- 563136.
7.
MIR MUKTHIAR AHMED,
S/O LATE MIR NAZEER AHMED,
AGED ABOUT 76 YEARS,
FORMERLY R/O NO.139,
TAYALUR, MULBAGAL TALUK,
KOLAR DISTRICT,
TAYALUR -563136
PRESENTLY R/O NO.886,
11TH CROSS, 1ST STAGE, 3RD BLOCK,
HBR LAYOUT, KALYAN NAGAR POST,
BANGALORE 560043.
…RESPONDENTS
(BY SRI IRSHAD ADMED K, ADVOCATE FOR C/R7,
SRI UMESH B.N., ADVOCATE FOR R1 TO R6)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(s) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
21.04.2023 PASSED ON I.A.NO.8 IN OS.NO.69/2018 ON THE
FILE OF THE COURT OF SENIOR CIVIL JUDGE AND JMFC,
MULBAGAL, ALLOWING THE I.A.NO.8 FILED UNDER ORDER 40
RULE 1 OF CPC.
- 3 -
NC: 2023:KHC:21653
MFA No. 3304 of 2023
C/W MFA No. 3768 of 2023
IN M.F.A.NO.3768 OF 2023:
BETWEEN:
SMT. HASEENA,
AGED ABOUT 44 YEARS,
W/O LATE MIR SHAFEEQ AHMED,
R/AT NO.139, TAYALUR-563136,
MULBAGAL TALUK,
KOLAR DISTRICT.
...APPELLANT
(BY SRI UMESH B.N., ADVOCATE)
AND:
1.
SRI MIR MUKTHIR AHMED,
AGED ABOUT 74 YEARS,
S/O LATE MIR NAZEER AHMED,
FORMERLY RESIDENT OF NO.139,
TAYALUR-563136,
MULBAGAL TALUK,
KOLAR DISTRICT.
PRESENTLY R/AT NO.886,
11TH CROSS, 1ST STAGE, 3RD BLOCK,
HBR LAYOUT, KALYAN NAGAR POST,
BANGALORE-560043.
2.
SMT. ASMA TAJ,
AGED ABOUT 26 YEARS,
D/O LATE MIR SHAFEEQ AHMED,
R/AT NO.139, TAYALUR-563136,
MULBAGAL TALUK,
KOLAR DISTRICT.
3.
SMT. HUSNA TAJ,
AGED ABOUT 25 YEARS,
D/O LATE MIR SHAFEEQ AHMED,
R/AT NO.139, TAYALUR-563136,
MULBAGAL TALUK,
KOLAR DISTRICT.
4.
SMT. NAJMA TAJ,
AGED ABOUT 24 YEARS,
- 4 -
NC: 2023:KHC:21653
MFA No. 3304 of 2023
C/W MFA No. 3768 of 2023
D/O LATE MIR SHAFEEQ AHMED,
R/AT NO.139, TAYALUR-563136,
MULBAGAL TALUK,
KOLAR DISTRICT.
5.
SMT. MERAJ TAJ,
AGED ABOUT 23 YEARS,
D/O LATE MIR SHAFEEQ AHMED,
R/AT NO.139, TAYALUR-563136,
MULBAGAL TALUK,
KOLAR DISTRICT.
6.
SMT ALIFA TAJ,
AGED ABOUT 22 YEARS,
D/O LATE MIR SHAFEEQ AHMED,
R/AT NO.139, TAYALUR-563136,
MULBAGAL TALUK,
KOLAR DISTRICT.
7.
SIR MIR MOHAMMED HAJI @ LAIQUE,
AGED ABOUT 64 YEARS,
S/O LATE MIR SHAFEEQ AHMED,
#513, 7TH MAIN, 3RD CROSS,
1ST STAGE, 5TH BLOCK,
HBR LAYOUT, KALYAN NAGAR POST,
BANGALORE-560043.
…RESPONDENTS
(BY SRI IRSHAD ADMED K, ADVOCTE FOR C/R1,
SRI YOGESH V. KOTEMATH, ADVOCATE FOR
SRI VIRUPAKSHAIAH P.H., ADVOCATE FOR R7,
NOTICE TO R2 TO R6 IS DISPENSED WITH
VIDE ORDER DATED 15.06.2023)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
21.04.2023 PASSED ON I.A.NO.8 IN OS.NO.69/2018 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MULBAGAL,
ALLOWING THE I.A.NO.8 FILED UNDER ORDER 40 RULE 1 CPC.
THESE APPEALS COMING ON FOR ADMISISON THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
- 5 -
NC: 2023:KHC:21653
MFA No. 3304 of 2023
C/W MFA No. 3768 of 2023
This matter is listed for admission today. Heard the
learned counsel for the appellant and the learned counsel
for the respondents.
These appeals are filed challenging the order
dated 21.04.2023 passed on I.A.No.8 in O.S.No.69/2018,
on the file of the Court of Senior Civil Judge and JMFC,
Mulbagal, allowing the application filed under Order 40 Rule
1 of CPC, wherein appointed the receiver and directed the
receiver to sell the mango crops and also other crops
grown in the plaint A and C to J suit properties and deposit
the sale proceeds in the Court pending disposal of the suit.
The learned counsel for the appellant submits
that the suit was filed in the year 2018 and the application
was filed in 2021 for appointment of receiver after lapse of
three years and the Trial Court committed an error in
allowing the application and appointing the receiver. The
learned counsel would contend that when there was
already a partition between the parties, the Trial Court
committed an error in appointing the receiver and whether
- 6 -
there was already a partition or not has to be adjudicated
before the Trial Court. The main contention of the learned
counsel for the appellant is that in terms of the partition,
the parties have acted upon and the plaintiff has also sold
some of the property after the said partition based on
M.R.No.275/1996-97 and contend that it is a frivolous suit.
The learned counsel for the respondent/plaintiff
contend that the Trial Court rightly allowed the application
having considered the pleadings of the parties. The suit is
filed for the relief of partition and separate possession and
mesne profits and the defendants are enjoying the income
from the plaint A and C to J suit properties and the Trial
Court rightly directed to sell the mango crops and other
crops and deposit the amount in the Court. When the
appellant has taken the specific contention that already
there was a partition and based on that partition, the
parties have acted upon and M.R.No.275/1996-97 came
into existence and based on that M.R. number, the plaintiff
has sold the property, whether the parties have acted upon
- 7 -
based on the partition and whether there was already a
partition or not, the same is subject matter of trial.
Having
taken
note
of
the
said
fact
into
consideration, the suit was filed in the year 2018 and five
years has been elapsed. Instead of considering the
receiver application and appointment of receiver, it is
appropriate to direct the Trial Court to dispose of the
matter within six months from today. The appellant, the
respondents and the respective counsel are directed to
assist the Trial Court in disposal of the suit within six
months. No further time will be extended for disposal of
the suit. The contention of the parties, which are taken in
the plaint as well as in the written statement, are kept
open for consideration of the Trial Court.
Accordingly, both the appeals are disposed of.
Sd/-
JUDGE
MD
List No.: 1 Sl No.: 27
