dated

19.08.2021 passed on I.A No.16 in O.S No.43/2015 on

the filed of the Senior Civil Judge and Prl. JMFC, KGF,

Kolar, rejecting the I.A No.16 filed under order 39

Rule 4 R/w Section 151 of CPC.

This MFA coming on for dictating the judgment

this day, the Court delivered the following:

JUDGMENT

This appeal is filed by the sixth defendant in

O.S.No.43/2015 pending on the file of the Senior

Civil Judge and Principal JMFC, KGF.

:: 3 ::

2.

In the suit there is an order of temporary

injunction

restraining

defendants

from

alienating the suit properties. The sixth defendant

made an application, as per IA No.16, under Order

XXXIX Rule 4 of CPC seeking relaxation of the

order to enable her to dispose of items 4, 6, 10

and 32 as she wanted money for performing the

marriage of her daughter. According to her, items

4, 6, 10 and 32 are her self acquired properties.

3.

The Trial Court passed the impugned

order on IA No.16 dismissing the said application

on 19.08.2021, giving reason that the second

defendant had made a similar application as per IA

No.12

and

it

was

rejected

on

07.04.2018.

Therefore to entertain the application, IA No.16,

there are no changed circumstances.

4.

It is

submitted by Sri M.S.Bhagwat,

learned Senior Counsel for the appellant that items

4, 6, 10 and 32 of the suit are standing in the

:: 4 ::

name of the sixth defendant/who is appellant

herein. This is not disputed by the plaintiff. IA

No.12 was made by the second defendant and

dismissal of that application would not come in the

way of relaxing the interim order of injunction.

5.

Sri M.S.Bhagwat further submitted that,

the appellant has clearly stated that she wants

money to perform the marriage of her daughter

and

moreover

in

writ

petition,

W.P.No.30387/2018, this Court observed that the

petitioner therein could make an application under

Section 52 of the Transfer of Property Act seeking

leave of the Court for the purpose of alienating the

properties. The appellant is the wife of the second

defendant, who was the petitioner in the writ

petition. The same liberty is also available to the

wife. The appellant has also made out a ground

for relaxing the order of temporary injunction

operating against her. In this view, the trial Court

:: 5 ::

would have taken a decision to relax the order of

temporary injunction.

6.

Sri

D.Prabhakar,

counsel

for

first

respondent though admits that items 4, 6, 10 and

32 of the suit properties stand in the name of the

appellant, he further submitted that if alienation is

permitted,

it

will

result

in

multiplicity

proceedings

and

therefore

Trial

Court

is

justified in rejecting IA No.16.

7.

This is a suit for partition. The plaintiff

has included properties which are situated in many

places. But, it is not in dispute that items 4, 6, 10

and 32 stand in the name of the appellant.

Keeping in mind the scope of the partition suit, the

trial Court should have considered the appellant’s

application. In a partition suit, if alienation is

permitted, the alienees could be impleaded in

accordance with Order XXII Rule 10 of CPC,

because of devolution of interest and that the

:: 6 ::

purchaser or alienee’s interest can be worked out

in the final decree proceedings.

8.

The

appellant

wants

money

for

purpose of performing marriage of her daughter.

The plaintiff has claimed 1/6^th share in all the

properties. But the Court has to decide as to how

much share he is entitled to or whether at all he is

entitled to share in all the items of the properties.

The appellant is the wife of second defendant, and

for this reason, in case items 4, 6, 10 and 32 are

held to be amenable for partition, the share that

can be allotted to second defendant can be worked

out in favour of the alienees of the appellant,

subject to valuation of the properties. This being

the position, the Trial Court could have permitted

the appellant

to sell or create any kind of

encumbrance in respect of items 4, 6, 10 and 32.

It has simply given the reason that be