A temporary injunction restraining alienation of property under Order 39 Rules 1 and 2 CPC cannot be granted in a suit essentially for recovery of money, as such relief is properly sought under Order 38 Rule 5 CPC, and statutory obligations under KAO Act require valid submission via deed of declaration.

ORAL JUDGMENT

CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

This Miscellaneous First Appeal is filed calling in question the order dated 06.11.2025, passed on I.A.No.1 in O.S.No.8355/2023 on the file of the XVII Additional City Civil and Sessions Judge, Bengaluru (CCH-16) (“Trial Court” for short), whereby the application filed by the plaintiff under order XXXIX Rules 1 and 2 CPC came to be allowed restraining the defendant-appellant from alienating the suit schedule property. An application filed by the defendant under Order XXXIX Rule 4 CPC came to be rejected.

Brief facts:

2. The respondent-plaintiff-Apartment Owners Association instituted a suit seeking recovery of maintenance charges alleged to be due from the appellant-defendant in respect of an apartment owned by her. Along with the suit, an application under Order XXXIX Rules 1 and 2 CPC was filed seeking an order of temporary injunction restraining the defendant from alienating the suit schedule property pending disposal of the suit.

3. The case of the plaintiff is that the apartment complex is governed by a deed of declaration and the provisions of Karnataka Apartment Ownership Act, 1972 (‘KAO Act’ for short) and that the defendant being an apartment owner is liable to pay maintenance charges which constitute a charge on the property. The appellant defendant resisted the application contending inter alia that she is not a party to the deed of declaration, that the plaintiff's association is not binding upon her and that the suit is essentially one for recovery of money, and that an injunction restraining alienation cannot be granted in such a suit. The Trial Court, by the impugned order, allowed the application under Order XXXIX Rules 1 and 2 and rejected the application filed by the defendant under Order XXXIX Rule 4 CPC. Aggrieved by the same, the present appeal is filed.

4. Learned Senior Counsel Sri Arun Kumar for the appellant submits that the application filed by the plaintiff is under Order XXXIX Rules 1 and 2 CPC, however, the nature of relief sought and the order passed by the Trial Court are in substance, in the nature of securing a money claim which could not have been granted in the guise of an injunction. It is contended that the suit itself is one for recovery of maintenance/money and therefore, if at all any protective order were to be sought, the same could only be within the scope of Order XXXVIII Rule 5 CPC and not under Order XXXIX Rules 1 and 2 CPC. It is further submitted that the Trial Court has failed to appreciate the effect of deed of declaration and the provisions of the KAO Act.

5. Placing reliance on paragraph Nos.17, 19 and 25 of the agreement/deed of declaration, learned Senior Counsel would contend that all the apartment owners ought to have submitted to the Act and joined in the declaration for the same to have legal efficacy. In the present case, the appellant is admittedly not a signatory or party to the deed of declaration and, therefore, the plaintiff's association cannot bind the appellant under the said document. It is urged that the record itself indicates that the appellant is not a party to the deed of declaration and therefore, the plaintiff's association cannot claim to be a legal entity as against the appellant nor enforce the terms of declaration against her. Reference is made to paragraph Nos.21, 25 and 28 of the impugned o