IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12^TH DAY OF JANUARY 2021

BEFORE

THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

CIVIL REVISION PETITION NO. 274/2014

BETWEEN :

1.

D. SANJEEVA GATTY

S/O ANTHAPPA GATTY

AGED ABOUT 61 YEARS,

R/AT DHARMAKI HOUSE,

POST KAIRANGALA,

BANTWAL TALUK,

THE PRESIDENT,

KAIRANGALA VYAVASAYA

SEVA SAHAKARI SANGHA LTD.

KAIRANGALA, BANTWAL – 574 211.

2.

MRS. PRABHAVATI.V.SHETTY

W/O VASANTHI SHETTY,

AGED ABOUT 37 YEARS,

THE BRANCH MANAGER,

KAIRANGALA VYAVASAYA

SEVA SAHAKARI SANGHA LTD.

KAIRANGALA, BANTWAL – 574 211.

... PETITIONERS

(By SRI. SHRIHARI K., ADVOCATE)

AND :

ALPHONES D’ SOUZA

S/O LATE CASHMIR D’ SOUZA

AGED ABOUT 61 YEARS,

R/AT NO.1-347

SUNFLOWER HOUSE,

2

KAIRANGALA VILLAGE AND POST,

BANTWAL – 574 211.

... RESPONDENT

(By SRI.G. RAVISHANKAR SHASTRI., ADVOCATE)

THIS CIVIL REVISION PETITION IS FILED UNDER

SEC.115

OF

CPC,

AGAINST

THE

ORDER

DATED

02.06.2014 PASSED ON IA NO. IV IN O.S. NO. 321/2013 ON

THE FILE OF THE PRL.CIVIL JUDGE & JMFC, BANTWAL,

D.K. REJECTING THE IA NO. IV FILED UNDER SECTION

151 AND ORDER VII RULE 11 (a) (d) OF CPC.

THIS PETITION COMING ON FOR FINAL HEARING,

THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

The defendants in the suit in OS No.321/2013 on

the file of the Principal Civil Judge and JMFC, Bantwal,

Dakshina Kannada (for short, ‘the Civil Court’) have filed

this revision petition impugning the order dated

2.6.2014 whereby, the petitioners’ application (IA.IV)

under Order VII Rule 11 of Code of Civil Procedure,

1908 (For short, ‘CPC’) is rejected.

2.

As a prelude, the learned Counsel for the

petitioners submits that the respondent – plaintiff has

3

deliberately suppressed the fact that the suit schedule

property, a residential house was owned by his brother,

Mr.Felix D’Souza and his brother’s wife, Mrs. Rofin

D’Souza. The respondent cannot deny that his brother

and sister-in-law availed a loan from M/s Kairangala

Vyavasaya Seva Sahakari Sangha Limited (for short ‘the

Society’) mortgaging the suit schedule property, and

because they defaulted in the repayment of the loan, the

Society initiated proceedings under Section 70 of the

Karnataka Co-operative Societies Act, 1959 (for short

‘the Act’). This dispute culminated in an award which

was put to execution by the Society, and in the auction

conducted thereafter, the Society has purchased the

suit schedule property.

3.

The learned Counsel for the petitioners

submits that the respondent has filed the suit in

O.S.No.321/2013 for permanent prohibitory injunction

restraining the petitioners from forcibly dispossessing

4

the respondent from the suit schedule property

asserting that he is in possession of the property for

over a period of 15 years along with his family members,

and he is entitled to sue the petitioners in their

individual as well as representative capacity as the

President of the Society and a Branch Manager of the

Society; because the respondent alleges cause of action

against the petitioners in their official capacity as an

office bearer/officer of the Society, he could not have

filed the suit, even if he could assert that the dispute

raised by him in the suit is outside the purview of

Section 70 of the Act, unless mandatory prior notice as

contemplated under Section 125 of the Act is issued.

4.

The learned counsel for the petitioners,

reading the provisions of Section 125 of the Act,

emphasizes that in the context of the aforesaid

pleadings the suit cannot be maintained against the

Society or its officers without notice as contemplated

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under Section 125 of the Act is issued and the suit is

instituted after a period of two months from the date of

delivery of the notice to the Society with necessary

pleading in this regard. The learned Counsel contends

that the present suit, which is instituted without such