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WP No. 109481 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 109481 OF 2019 (GM-CPC)
BETWEEN:
SRI.YALLAPPA KACHU BETGERIKAR
SINCE DECEASED BY LRS
1.
SRI.RAVALUR YALLAPPA BETAGERIKAR
AGE: 60 YEARS, OCC:AGRICULTURE,
R/O KALMESHWAR GALLI, BALGUNDI VILLAGE,
DIST. BELGAVI.
2.
SRI.KRISHNA YALLAPPA BETAGERIKAR
AGE: 70 YEARS, OCC:AGRICULTURE,
R/O KALMESHWAR GALLI, BELAGUNDI VILLAGE,
DIST:BELGAVI.
3.
SRI.NAGENDRA YALLAPPA BETAGERIKAR
AGE: 65 YEARS, OCC:AGRICULTURE,
R/O KALMESHWAR GALLI, BELAGUNDI VILLAGE,
DIST:BELGAVI.
…PETITIONERS
(BY SRI. MRUTYUNJAY TATA BANGI, ADV.)
AND:
SMT.YASHODABAI GOVIND BETAGERIKAR
SINCE DECEASED BY LRS
1.
SRI.PARASHRAM GOVIND BETAGERIKAR
AGE: 50 YEARS, OCC:AGRICULTURE,
R/O KALMESHWAR GALLI, BELAGUNDI VILLAGE,
DIST:BELGAVI.
2.
SMT.MALU W/O RAGHUNATH PATIL
AGE: 45 YEARS, OCC:HOUSEHOLD WORK,
BEFORE MARRIAGE KNOWN AS
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WP No. 109481 of 2019
SMT MALU D/O GOVIND BATAGERIKAR,
R/O KALMESHWAR GALLI, BELAGUND VILLAGE,
DIST BELGAVI.
3.
SRI.PARASHURAM YALLAPPA BETAGERIKAR
AGE: 62 YEARS, OCC:AGRICULTURE,
R/O KALMESHWAR GALLI, BELAGUNDI VILLAGE,
DIST:BELGAVI.
…RESPONDENTS
(BY SRI.J.S.SHETTY, ADV. FOR R1 & R2;
SRI.A.G.MULWADMATH, ADV. FOR R3;
SRI.SHARAD M PATIL, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
OR DIRECTION AND SET ASIDE THE ORDER PASSED BY THE III
ADDL. SENIOR CIVIL JUDGE AND CJM, AT BELAGAVI PASSED
IN MA NO.23 OF 2018 DATED 22.03.2019, COPY AS PER
ANNEXURE-M CONFIRMING THE ORDER PASSED BY THE I
ADDL. CIVIL JUDGE AND JMFC, BELAGAVI PASSED IN FDP
NO.6 OF 2016 DATED 23.01.2018 ON I.A. NO.5 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC COPY AS PER ANNEXURE-H
AND DISMISS THE APPLICATION IN I.A.NO.5 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPCBY ALLOWING THE PRESENT
WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
B- GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
This writ petition is filed challenging the grant
of an injunction restraining the petitioners from putting up
construction and its affirmation by the Appellate Court.
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Learned counsel for the petitioners contend that
the suit for partition was decreed in the year 1975 and
thereafter the parties had amicably settled the differences
amongst themselves and thus final decree proceedings
had not been initiated. He contends that on the basis of
the settlement arrived at, the petitioners herein had
proceeded to start construction and at that point of time,
final decree proceedings were initiated and in those final
decree proceedings, an injunction is granted against the
petitioners.
He submits that having regard to the length of
time that had lapsed between preliminary decree and
initiation of final decree proceedings, the Courts below
ought not to have entered application for injunction.
4.
The petitioners have been injuncted from the
order of putting construction by the Trial Court by an order
dated 23.01.2018 and this has been confirmed by the
Appellate Court on 22.03.2019.
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5.
The petitioners did not have the benefit of
interim order before this Court. In other words, for the
past three years, the petitioners have suffered the order of
injunction and have been restrained from putting up any
construction.
6.
In my view, at this point of time, it would be
inappropriate to examine validity of the order and interest
of justice would be sub served by directing the final decree
Court to dispose of the final decree proceedings within a
period of six months from the date of receipt of copy of
this order.
7.
Writ petition is disposed of.
SD
JUDGE
KGK
List No.: 1 Sl No.: 47
