IN THE HIGH COURT OF KARNATAKA,

DHARWAD BENCH

DATED THIS THE 12^TH DAY OF FEBRUARY, 2020

BEFORE

THE HON’BLE MR.JUSTICE S.G. PANDIT

WRIT PETITION NO.114949/2019 (GM-CPC)

BETWEEN

MALLAPPA S/O NEELAPPA MANGALORE

AGE: 48 YEARS, OCC: AGRICULTURE,

R/O: KUDARIMOTHI-583409,

TQ: YELBURGA, DIST: KOPPAL.

... PETITIONER

(BY SRI.RAVI S BALIKAI, ADVOCATE)

AND

1.

SMT.MALLAVVA W/O MAHADEVAPPA SAJJAN

AGE: 50 YEARS, OCC: HOUSEHOLD,

R/O: HALAGERI-583221,

TQ & DIST: KOPPAL.

2.

MANJUNATH S/O GURAPPA SAJJAN

AGE: 34 YEARS, OCC: AGRICULTURE,

R/O: HALAGERI-583221,

TQ & DIST: KOPPAL.

3.

SMT.MAMTHAZ BEGUM

W/O HUSSAIN BASHA MAKANDAR

AGE: 40 YEARS, OCC: HOUSEHOLD,

R/O: KUDARIMOTHI-583409,

TQ: YELBURGA, DIST: KOPPAL.

4.

HUSSAIN BASHA

S/O HUSSAIN SAB MAKANDAR

2

AGE: 45 YEARS, OCC: DOCTOR,

R/O: KUDARIMOTHI-583409,

TQ: YELBURGA,

DIST: KOPPAL.

5.

SHARANAPPA S/O MAHANTAPPA SAJJAN

AGE: 30 YEARS,

OCC: AGRICULTURE,

R/O: KUDARIMOTHI-583409,

TQ: YELBURGA, DIST: KOPPAL.

6.

UMESH S/O MAHANTAPPA SAJJAN

AGE: 27 YEARS,

OCC: AGRICULTURE,

R/O: KUDARIMOTHI-583409,

TQ: YELBURGA, DIST: KOPPAL.

7.

SMT.NAGAMMA W/O ESHAPPA SAJJAN

AGE: 43 YEARS,

OCC: AGRICULTURE,

R/O: KUDARIMOTHI-583409,

TQ: YELBURGA,

DIST: KOPPAL.

... RESPONDENTS

THIS WRIT PETITION IS FILED UNDER ARTICLES

226

AND

227

OF

THE

CONSTITUTION

OF

INDIA

PRAYING TO QUASH THE ORDER DATED 09.10.2019

PASSED ON I.A.NO.1 IN R.A.NO.20/2019 ON THE FILE

OF THE DISTRICT JUDGE, KOPPAL PRODUCED AS

ANNEXURE-A BY ISSUING A WRIT OF CERTIORARI

ORDER OR ANY OTHER APPROPRIATE ORDER AND

ALLOW THE SAID I.A.NO.1 AS PRAYED FOR.

THIS

WRIT

PETITION

COMING

ON

FOR

PRELIMINARY HEARING THIS DAY, THE COURT MADE

THE FOLLOWING:

3

ORDER

The petitioner/plaintiff is before this Court

under Article 227 of the Constitution of India

assailing the order dated 09.10.2019 on I.A.No.1

in R.A.No.20/2019 on the file of the District

Judge, Koppal.

2.

Heard the learned counsel for the

petitioner and perused the writ petition papers.

3.

The learned counsel for the petitioner

would submit that the trial Court committed an

error in rejecting I.A.No.1 in R.A.No.20/2019. It

is his submission that the plaintiff/petitioner

herein had filed O.S.No.26/2013 for judgment

and

decree

of

declaration,

injunction

and

rectification of survey number. The said suit

came to be dismissed by judgment and decree

dated

28.06.2019.

Aggrieved

by

the

said

judgment

and

decree,

the

petitioner

filed

4

R.A.No.20/2019

before

the

District

Judge,

Koppal. Along with the appeal the petitioner had

also filed an application under Order 41 Rule 5

of CPC praying to stay the judgment and decree

dated 28.06.2019 in O.S.No.26/2013. The said

application under the impugned order is rejected

by the First Appellate Court, against which the

present

writ

petition

is

filed.

The

learned

counsel for the petitioner submits that during

the course of the impugned order at Annexure-A,

the trial court has given finding which would

have bearing on the final disposal of the appeal.

The Appellate Court ought not to have given

such

findings

while

deciding

the

interim

application. Therefore, he submits that the order

requires to be set aside.

4.

Having heard the learned counsel for

the petitioner and on perusal of the writ petition

5

papers, I am of the view that the petitioner

would not be entitled for any relief under Article

227 of the Constitution of India. The relief

sought for by the petitioner in I.A.No.1 was stay

of judgment and decree dated 28.06.2019 in

O.S.No.26/2013, which is not an executable

decree. As such, I find no error in rejecting the

I.A.No.1. However, any observations or finding

by the Appellate Court during the course of the

impugned order shall not influence the further

proceedings or in the final disposal of the appeal

in R.A.No.20/2019.

5.

With the above observations, th