JUDGMENT : Aravind Kumar, J. - Heard Sri.Rajendra Holla, learned counsel appearing for petitioner and Sri.P.H.Ramalingam, learned counsel appearing for the respondent. Perused the records. 2. Petitioner has filed OS.No.6065/1998 against respondent herein for the relief of partition and separate possession of 40% share in suit 'B' schedule property and also for mesne profits. Said suit came to be decreed by judgment and decree dated 05.08.2005 holding that petitioner is entitled to 40% share in the suit 'B' suit schedule property. Said judgment and decree came to be affirmed in RFA No.1222/2005 and thereby it had finality. 3. In order to enjoy the fruits of the decree, petitioner initiated final decree proceedings in FDP No.89/2005 and learned trial Judge by order dated 13.08.2007 allotted first and second floor portion of the suit 'B' schedule property in favour of petitioner and liberty was also granted to the petitioner to apply for enquiry into mense profits separately as per decree. 4. Hence, petitioner herein filed Ex.Petn.No.1701/2007 for execution of aforesaid decree for partition and separate possession of 40% share in suit 'B' Schedule property and also for recovery of mesne profits. An application came to be filed by the defendant-respondent seeking for dismissal of the execution petition on the ground same was not maintainable and it came to be rejected. 5. Being aggrieved by the same defendant-respondent preferred WP.No.4513/2018 and this Court by order dated 26.02.2009, Annexure-F allowed the writ petition, set aside the order passed by the Trial Court and dismissed the execution petition reserving liberty to the petitioner to file application for enquiry regarding mesne profits in terms of the preliminary decree passed in OS.No.6065/1998 confirming in RFA.No.1222/2005. Hence, petitioner filed FDP No.61/2009. In the said final decree proceedings, an application under Order 38 Rule 5 read with Section 151 of CPC was filed by plaintiff-petitioner seeking attachment of suit schedule properties which has been described as Item No.1 and 2 in the application vide Annexure-H. 6. Hence, petitioner filed FDP No.61/2009. In the said final decree proceedings, an application under Order 38 Rule 5 read with Section 151 of CPC was filed by plaintiff-petitioner seeking attachment of suit schedule properties which has been described as Item No.1 and 2 in the application vide Annexure-H. 6. Learned trial Judge after considering the objections filed by the respondent-defendant, by impugned order dated 08.01.2014 dismissed the application on two grounds namely 1) in respect of property Item No.1, i.e. Jayanagar property, it was held that petitioner had not produced any documents to show that said property is standing in the name of the respondent; and (2) In so far as second item of the property is concerned, it came to be held that petitioner had no right to sell said property since, it is a leasehold right. Hence, the application filed under Order 38, Rule 5 read with Section 151 CPC came to be dismissed, which is impugned in the present writ petition. 7. Though several grounds are urged in the writ petition, Sri.Rajendra Holla, learned counsel appearing for petitioner would submit that when decree granted by the Trial Court allotting 40% share in ' B' schedule property has reached finality, plaintiff-petitioner would be entitled for the past mense profits which has been denied to her and to secure the said amount which would be decreed in favour of the petitioner in the pending final decree proceedings, the property belonging to the respondent should be attached as otherwise petitioner would not be able to enjoy the fruits of the decree or in other words, it would become a paper decree. 8. Per contra, Sri.P.H.Ramalingam, learned counsel appearing for the respondent would support the order passed by the trial Court and contend that no material was produced by the plaintiff-petitioner to establish his right over said properties and as such, trial Court has rightly rejected the said application and it would not call for interference by this Court. Hence, he prays for rejection of the writ petition. 9. Hence, he prays for rejection of the writ petition. 9. Having heard the learned advocates appearing for the parties, and on perusal of the records it would disclose that at the time of issuing notice on this petition i.e. on 21.08.2014, this Court had restrained the respondent herein from alienating the immovable properties described in the writ petition as schedule 'A' and 'B' by observing that "respondent is restrained from alienating the schedule properties if not already alienated as on date". Learned counsel for the petitioner has made available the copy of the assignment of leasehold deed dated 05.06.2014, which would disclose the leasehold right of item No.2 of the property respondent herein along with his sister Smt.S.V.Anitha have assigned it in faovur of third parties as morefully described therein. This deed has been executed by them prior to the interim order that came to be passed by this Court on 21.08.2014. Hence, order passed by this Court would not benefit the petitioner. In respect of item No.1 property in respect of which the petitioner sought for attachment was on the basis it had been allotted to the share of the respondent herein under a memorandum of partition dated 14.06.1990 executed amongst all the members of the family which is at Annexure-M. A perusal of the said deed/document would disclose that apart from petitioner and respondent, other members of the family are also signatories to the said document. Under the said memorandum of partition, Item No.1 of property has been allotted to the share of the respondent herein by describing it as "E" schedule property. However, life interest is created in favour of mother of petitioner and respondent i.e. Smt.Lakshmidevamma. In respect of said property, this Court by order dated 21.08.2014 had directed that respondent should not alienate the same. Though petitioner claims said deed or document has been produced before trial Court same has been denied by learned counsel appearing for the respondent. Impugned order is also silent with reference to said document. Hence, it would not be appropriate for this Court to examine the disputed question of fact. Hence, reserving liberty to the parties to urge respective contentions in respect of Item No.1 property i.e. property described as schedule 'A' in the writ petition, matter is remanded back to the trial Court for consideration. Hence, it would not be appropriate for this Court to examine the disputed question of fact. Hence, reserving liberty to the parties to urge respective contentions in respect of Item No.1 property i.e. property described as schedule 'A' in the writ petition, matter is remanded back to the trial Court for consideration. Hence, without expressing any opinion on the merits of the case, impugned order is set aside and matter is remanded back to the Trial Court for consideration of IA.No.8 filed by the petitioner under Order 38, Rule 5 read with Section 151 of CPC. In order to allay the apprehension of the respondent that petitioner is likely to protract the proceedings, this Court is of the considered view that time schedule deserves to be fixed for disposal of the said application by the trial Court. Hence, I proceed to pass the following: ORDER i) Writ petition is hereby allowed; ii) Order dated 08.01.2014 passed by XVIII Additional City Civil and Sessions Judge, Bangalore, in FDP No.61/2009-Annexure-N is hereby set aside; iii) I.A.No.8 filed by the petitioner under Order 38 Rule 5 r/w Section 151 of CPC - Annexure-H is restored to the file of XVIII Additional City Civil and Sessions Judge, Bangalore, for being disposed of on merits and in accordance with law without being influenced by its earlier order; iv) It is made clear that Trial Court would be at liberty to examine the prayer sought for in I.A.No.8 independently by taking into consideration all such material available before it and also rival contentions that may be raised. v) Learned trial Judge shall dispose of the said application expeditiously at any rate within a period of four (4) weeks from the date of receipt of this order and during this interregnum period interim order granted by this Court on 21.08.2014 insofar as Item No.1 of the suit schedule property is concerned, shall stand or operate; vi) Trial Court shall give priority to this proceeding/application, since the decree is of the year 2005. vii) Registry is hereby directed to forward the copy of operative portion of this order to the trial Court forthwith. Ordered accordingly.