IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16^TH DAY OF AUGUST 2021

BEFORE

THE HON9BLE MR.JUSTICE ASHOK S. KINAGI

WRIT PETITION NO.36407/2018(GM-CPC)

BETWEEN:

1. SRI.M.SRIDHARA ACHARYA

AGED ABOUT 72 YEARS

S/O LATE RAMAPPA ACHARYA

DOOR NO.4-69, SUDHA JEWELLERS

MOODABIDRI

PRANTHYA VILLAGE

MOODABIDRI POST 3 574 227

MANGALORE TALUK

2. SRI.M.KESHAVA BHAT

AGED ABOUT 81 YEARS

S/O LATE THIRUMALESHWARA BHAT

DOOR NO.4-70, CHETHANA MEDICALS

MOODABIDRI

PRANTHYA VILLAGE

MOODABIDRI POST 3 574 227

MANGALORE TALUK

...PETITIONERS

(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)

AND:

SRI.SURESH ACHARYA

AGED ABOUT 54 YEARS

2

S/O RAMAYYA ACHARYA

KANTHESHWARA JEWELLERS

MOODABIDRI TOWN

MOODABIDRI POST 3 574 227

MANGALORE TALUK

D.K

&RESPONDENT

(BY SRI. SIDDHARTH B MUCHANDI ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES

226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING

TO QUASH THE ORDERS AT ANNEXURE 3A DATED

23.03.2018 MADE IN M.A.NO.28/2015 ON THE FILE OF

THE III ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE

(ITINERARY AT MOODABIDRI AND B DATED 27.10.2014

MADE IN O.S.NO.136/2013 ON THE FILE OF THE CIVIL

JUDGE AND J.M.F.C. MOODABIDRI.

THIS PETITION COMING ON FOR ORDERS THIS DAY,

THE COURT MADE THE FOLLOWING:

O R D E R

This writ petition is filed challenging the order

dated 23.3.2018 passed in M.A.No.28/2015 on the file

of the III Addl. Senior Civil Judge, Mangalore

(Itinerary at Moodibidari) and order dated 27.10.2014

passed in O.S.No.136 of 2013 by Civil Judge and JMFC

Moodbidari.

3

2. Brief facts leading to filing of this petition are

as under:

The

petitioners

are

the

defendants

and

respondent is the plaintiff before the trial Court. The

respondent filed a suit in O.S.No.136 of 2013 seeking

for the relief of declaration of title and also declaration

of decree 2.3.2000 passed in O.S.No.173/1996 by the

Principal Civil Judge, Sr. Divn. Mangalore is null and

void, ineffective and shall not effect the exclusive title

of the respondent and sought for perpetual injunction.

In the said suit, the respondent filed an application

seeking for temporary injunction restraining the

petitioners from alienating 8A9 schedule property in

any way including by execution of collusive judgment

and

decree

dated

2.3.2000

passed

in

O.S.No.173/1996 by the Principal Civil Judge, Jr. Divn.

Mangalore till the disposal of the suit. The said

application was opposed by the petitioners. The Trial

4

Court

after

hearing

the

parties

allowed

the

application-I.A.No.2

and

granted

an

order

of

temporary injunction vide order dated 27.10.2014.

The petitioners aggrieved by the order on I.A.2

preferred

appeal

in

MA.No.28/2015

before

the

Appellate Court. The Appellate Court dismissed the

appeal vide order dated 23.03.2018 and confirmed the

order of the Trial Court. The petitioners aggrieved by

the order passed on I.A.No.2 has filed this writ

petition.

3. Heard learned counsel for petitioners and

learned counsel for respondent.

4. Learned counsel for the petitioners submits

that the Trial Court has committed an error in passing

an order of temporary injunction. He further submits

that the decree passed in O.S.No.173/1996 is passed

by the superior Court and the present suit is filed in

5

the

subordinate Court.

He

submits

that

the

application for injunction to restrain execution of a

decree passed by a Sr. Civil Judge is not maintainable

as the Senior Civil Judge is not subordinate to the Civil

Judge (Jr.Dn.). As per Section 41(b) of the Specific

Relief Act, an injunction cannot be granted to restrain

any person from instituting or prosecuting any

proceedings in a Court not subordinate to that from

which injunction is sought. The said legal aspect was

not considered by the courts below. Hence, he

submits that the impugned order passed by the courts

below is arbitrary and capricious. He further relies

upon the judgment of Hon9bl