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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 12271 OF 2022(GM-CPC)
BETWEEN:
SADANANDA A SHETTY
AGED ABOUT 61 YEARS,
S/O LATE ADAPPA K SHETTY,
41, K K BUILDING, JHANGIR MERVANJ STREET,
PAREL, MUMBAI-400012
...PETITIONER
(BY SRI. SUDESH KUMAR ACHARYA, ADVOCATE)
AND:
1. SHALINI K SHETTY
AGED 54 YEARS,
D/O LATE ADAPPA K SHETTY,
ANUGRAHA BUILDING, POST KADEKAR-574103,
UDUPI TALUK AND DISTRICT
2. RAGHURAM A SHETTY
SINCE DECEASED BY LRS
2a). ASHA R SHETTY
AGED 61 YEARS,
W/O LATE RAGHURAMASHETTY
2b). HARI R SHETTY
AGED 35 YEARS,
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S/O LATE RAGHURAMASHETTY
2c). SHRUTHI R SHETTY
AGED 37 YEARS,
D/O LATE RAGHURAMASHETTY
RESPONDENTS NO.2a TO 2c ARE
R/AT BUILDING NO 6, FLAT NO 1,
KRISHNA BUILDING, CHEMBUR, MUMBAI-400071,
MAHARASHTRA STATE
3. BHASKARA SHETTY
SINCE DECEASED BY LRS
3a). VIJAYALAKSHMI B SHETTY
AGED 68 YEARS,
W/O LATE BHASKARA SHETTY
3b). ABHISHEK B SHETTY
AGED 44 YEARS,
S/O LATE BHASKARA SHETTY
3c). AVINASH B SHETTY
AGED 46 YEARS,
S/O LATE BHASKARA SHETTY
3d). ABIJITH B SHETTY
AGED 38 YEARS,
S/O LATE BHASKARA SHETTY
3e). ABHILASH B SHETTY
AGED 33 YEARS,
S/O LATE BHASKARA SHETTY
RESPONDENTS NO.3a TO 3e ARE
R/AT KEREKATE, HOSANGADI
POST SIDDAPURA-576124
KUNDAPURA TALUK, UDUPI DISTRICT
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4. SUDHA D SHETTY
AGED 75 YEARS,
S/O LATE ADAPPA K SHETTY,
SURABHI HOUSE, NGO COLONY,
HANUMANTHA NAGAR, PUTTUR-574107,
UDUPI TALUK AND DISTRICT
5. UMESH A SHETTY
SINCE DECEASED BY LRS
5a). USHA V SHETTY,
AGED 30 YEARS,
D/O UMESH A SHETTY
5b). THRISHA V SHETTY
AGED 28 YEARS,
D/O UMESH A SHETTY
RESPONDENTS NO.5a TO 5b ARE
R/AT HOSALA VILLAGE, NAGARMUTT
POST BARKUR-576128, UDUPI TALUK
6. SHARADA R HEGDE
SINCE DECEASED BY LRS
6a). RAGHURAMA HEGDE
AGED 77 YEARS,
6b). KARTHIK HEGDE
AGED 47 YEARS,
S/O LATE SHARADA HEGDE
6c). KAUSHIK HEGDE
AGED 45 YEARS,
S/O LATE SHARADA HEGDE
6d). KAVYA HEGDE
AGED 42 YEARS,
D/O LATE SHARADA HEGDE
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RESPONDENTS NO.6a TO 6d ARE
R/AT D 106, G R LAVENDER APARTMENTS
NEAR MSR NAGAR, J P NAGAR, 8TH PHASE,
BENGALURU-560076
7. VASANTHA A SHETTY
AGED 58 YEARS,
S/O LATE ADAPPA K SHETTY, HOSALA VILLAGE,
NAGARMUTT, POST BARKUR
UDUPI TALUK
…RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DTD. 01.06.2022 PASSED IN IA NO. VI PASSED IN FDP
NO.13/2009 ON THE FILE OF THE COURT OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MACT UDUPI VIDE ANNX-A AND TO
DISMISS IA NO.VI.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
The captioned writ petition is filed by the respondent
No.6 in final decree proceedings pending in FDP.No.13/2009
feeling aggrieved by the order of the FDP Court passed on
I.A.No.6 appointing a Court Commissioner to submit feasibility
of partition insofar as schedule 'B' property is concerned
relating to item Nos.1 and 2.
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2.
The respondent No.1 instituted a suit for partition
and separate possession in O.S.No.75/2004. The said suit
was decreed granting 1/8th share to respondent No.1. The
contention of the petitioner before this Court is that the
preliminary
decree
passed
by
the
Court
below
in
O.S.No.75/2004 is under challenge before this Court in
RFA.No.1591/2015. Therefore, respondent No.1 cannot
proceed with the final decree proceedings insofar as schedule
'B' property is concerned.
3.
The second limb of arguments canvassed by the
learned counsel for the petitioner is that respondent No.1
herself has filed a suit seeking relief of declaration in Suit
No.1919/2015 on the file of the Small Causes Court at
Mumbai. The contention of the petitioner is that the Small
Causes Court at Mumbai on an interlocutory application has
held that the preliminary decree passed in O.S.No.75/2004
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cannot be enforced and the said decree passed by the Civil
Judge, Udupi is not applicable.
4.
Be that as it may. If there is a preliminary decree
in favour of respondent No.1, then unless the preliminary
decree is stayed by the Superior Court/Appellate Court, the
respondent No.1 is entitled to proceed with the final decree
proceedings. Therefore, merely because the suit is filed by
the respondent No.1 before Court of Small Causes at Mumbai,
that in itself would not invalidate or nullify the preliminary
decree passed by the competent court in O.S.No.75/2004.
The petitioner's contention is that since respondent No.1
herself has instituted a suit at Mumbai, the learned Judge
ought to have taken into consideration in regard to filing of the
suit by the respondent No.1.
5.
The grievance of the petitioner before this Court is
that the order under challenge is a cryptic order. The detailed
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objections which were filed are not dealt by the learned Judge
while passing the order under challenge.
6.
As stated supra, if preliminary decree is not stayed
by the Superior Court, the respondent No.1 is entitled to
proceed with the final decree proceedings. Merely because
FDP Court has allowed the application and appointed a Court
Commissioner, that in itself would not cause any prejudice to
the petitioner's right. It is open for the present petitioner
herein to pursue his remedy in pending regular first appeal
which is a statutory appeal and the preliminary decree has to
be tested before the Appellate Court which is a final fact
finding authority. Therefore, this Court is of the view that the
petitioner has an efficacious remedy and he has to work out
his remedy in the pending regular first appeal before this
Court in RFA.No.1591/2015.
7.
Therefore, I do not find any error in the order
under challenge. Accordingly, writ petition is dismissed.
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This order will not come in the way of petitioner in
seeking appropriate remedy in the pending regular first
appeal.
Sd/-
JUDGE
CA
