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2019 DIGILAW 82 (KAR)

R. Gopal v. R. Srinivasa

2019-01-07

ALOK ARADHE

body2019
JUDGMENT : Alok Aradhe, J. - Heard Mr. Gururaj D.M., learned counsel for the petitioners. 2. Petitions are admitted for hearing. With the consent of the petitioners, it is taken up for final hearing. 3. In this writ petition under Article 226 and 227 of the Constitution of India, the petitioners have assailed the order dated 31.05. 2013 by which, the application preferred by respondent No. 1 under Order XXXIX, Rule 7 of Civil Procedure Code, 1908 (herein after referred as the 'Code' for short) has been allowed and defendants have been directed to preserve the suit schedule properties as stood then till the disposal of the suit. 4. Learned counsel for the petitioners submits that respondent No. 1 had filed a suit for partition inter alia to declare that he is entitled for 1/3 rd share in suit schedule property by metes and bounds and to declare that release deed dated 14.2.2000 executed by respondent No. 1 and sale deed dated 24.3.2007 are not binding on the plaintiff along with an interlocutory application under Order XXXIX, Rules 1 and 2 of code seeking to restrain the defendants from alienating the plaint schedule properties. In the said suit, relief of permanent injunction has also been sought. 5. The trial Court partly allowed the said application restraining the defendants from alienating item No. 1 of the plaint A schedule properties i.e. house property bearing No. 509/ 1, later No. 12 and Municipal No. H-38, 2nd Cross, Lakshminarayanapuram, Sri. rampur-am, Bangalore 560 021 and Item No. 6 of the schedule property i.e. H-53 & later No. 501 and present No. 5 of plaint schedule property and has vacated the temporary injunction granted in respect of the remaining other items of the properties. 6. Being aggrieved by the aforesaid order, respondent No. 1 filed the appeal under Order XLIII, Rule l(r) of code before this Court. The aforesaid appeal was partly allowed by order dated 29.08.2008. Thereafter, respondent No. 1 again filed an application under Order XXXIX, Rule 7 code seeking a direction to the petitioner herein to preserve the suit schedule properties on the same grounds. However, defendant No. 2 had expired and respondent No. 1 did not take any steps to bring her LRs on record. Thereafter, respondent No. 1 again filed an application under Order XXXIX, Rule 7 code seeking a direction to the petitioner herein to preserve the suit schedule properties on the same grounds. However, defendant No. 2 had expired and respondent No. 1 did not take any steps to bring her LRs on record. Despite the aforesaid fact, the trial Court took up the application under Order XXXIX, Rule 7 of code filed by respondent No. 1 and by the impugned order has allowed the aforesaid application. 7. Learned counsel for the petitioner submits that the trial Court ought to have appreciated the fact that similar application was partly allowed by it on 30.7.2008 which was upheld by this Court in appeal on 29.8.2008. There-fore, the aforesaid order was binding on the parties. 8. I have considered the submission made by the learned counsel for the petitioner. From perusal of the impugned order, it appears that, without appreciating the fact that order was passed on an earlier occasion by the trial Court in respect of the suit schedule properties by allowing the application under Order XXXIX, Rules 1 and 2 of code which was upheld in appeal, the trial Court has passed the impugned order and the same has not been considered by the trial Court while deciding the application under Order XXXIX, Rule 7 of Code. Further, the trial Court has not taken into account the fact that defendant No. 2 has expired. Therefore, the impugned order suffers from error apparent on the face of the record vice non-application of mind which cannot be sustained in the eye of law. Therefore, the trial Court shall decide the application filed by the respondents under Order XXXIX, Rule 7 code after affording opportunity of hearing to the parties in the light of the, observations made supra. Accordingly, the petitions are disposed of.