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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3RD DAY OF SEPTEMBER, 2014

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

MISCELLANEOUS FIRST APPEAL NO.5894/2013 (CPC)

BETWEEN: SRI M.P. KAVISHA S/O M.B. PANCHAKSHARAIAH AGED ABOUT 52 YEARS BUSINESS, R/O VIJAYAPURA EXTENSION CHIKMAGALUR- 577 101. … APPELLANT (BY SRI.S KALYAN BASAVARAJ, ADVOCATE)

AND: 1. SMT. VASANTHAMALA DATTATRI, W/O LATE DATTATRI AGED ABOUT 56 YEARS HOUSEWIFE 2. DR. SRINIVAS S/O LATE DATTATRI AGED ABOUT 38 YEARS DOCTOR BY PROFESSION. 3. MR. SRIKANTH S/O LATE DATTATRI AGED ABOUT 33 YEARS EMPLOYEE IN BANK ALL ARE RESIDING AT BASAVANAHALLI MAIN ROAD CHIKMAGALUR-577 101.

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4. THE COMMISSIONER CITY MUNICIPAL COUNCIL CHIKMAGALUR-577 101. … RESPONDENTS (BY SRI. P.N. MANMOHAN, ADVOCATE FOR R-1 AND R-2; NOTICE TO R-4 SERVED; NOTICE TO R-3 DISPENSED WITH V/O DATED 19.11.2013) THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC PRAYING AGAINST THE ORDER DATED 15.06.2013 PASSED ON I.A.NO.III IN O.S.NO.118/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND JMFC, CHIKMAGALUR, DISMISSING I.A.NO.III FILED U/O 39 RULE 1& 2 OF CPC, FOR T.I. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Unsuccessful plaintiff being aggrieved by order of

rejection of an application filed under Order 39 Rules 1 & 2

CPC is before this Court questioning correctness and legality

of said order dated 15.06.2013 passed by Addl.Civil Judge

(Sr.Dn) & JMFC, Chickmagalur in O.S.No.118/2012.

2. I have heard the arguments of Sri Kalyan

Basavaraj, learned Advocate appearing for appellant and Sri

P.N.Manmohan, learned Advocate appearing for respondents

– 1 and 2. Notice to respondent-3 has been dispensed with.

Respondent-4 is served and unrepresented. Though matter

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is listed for admission by consent of learned advocates

appearing for the parties, it is taken up for final hearing.

3. Parties are referred to as per their rank in the

trial Court.

4. Plaintiff has filed a suit for declaration to declare

that he is the absolute owner in possession and enjoyment of

suit schedule property measuring 39’ x 75’ morefully

described in the plaint schedule and for perpetual injunction

to restrain the defendants from interfering with his alleged

possession of suit schedule property contending interalia

that Sy.No.18 of Basavanahalli village, Chickmagaluru

District originally belonged to one Smt.Tayamma @

Mookambikamma which had been purchased by her from

Sri Belur R. Soorappa and out of total extent of 1.22 acres

purchased by her, she gifted an extent of 18 guntas in favour

of Sringeri Mutt and remaining extent was 1.04 acres was

retained by her. It is also contended that said Smt.Tayamma

obtained permission from Deputy Commissioner,

Chickmagaluru to convert the land to non-agricultural

purposes. After obtaining permission, she formed sites each

measuring 50 gaja x 13 gaja which according to plaintiff

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measures around 39 ft. x 150 ft. It is also contended that

she conveyed one such site to Smt.Meenakshamma under a

registered sale deed dated 01.10.1995, for which sale deed

her children had also affixed signatures as witnesses and

said Smt.Tayamma is none other than first defendant’s

husband’s mother and grandmother of defendants 2 and 3.

It is also contended that they were self acquired properties of

Smt.Tayamma. Plaintiff further contend that after forming

sites she sold all the sites except one site which was retained

by her and one such site which was purchased by

Smt.Meenakshamma inturn sold property in favour of

Ganesh Saw Mill represented by its partner Khimji Ramji

Jolapara under registered sale deed dated 22.12.1969 and

legal heirs of Khimji Ramji Jolapara inturn executed a power

of attorney in favour of D.K.Jolapara who inturn sold a

portion of the property in favour of plaintiff as well as father

of plaintiff under separate sale deeds. It is also contended

that under the partition effected between the family

members of plaintiff, schedule property came to be allotted

to the share of plaintiff and since then he was in enjoyment

of the same and he has also contended that first defendant is

attempting to interfere with the possession and enjoyment of

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property by plaintiff under the guise of an order of eviction

passed in HRC No.6/1992. Plaintiff also filed an application

under Order 39 Rules 1 and 2 CPC seeking an order of

temporary injunction against defendants from interfering

with his possession.

5. Defendants after service of suit summons, have

appeared and filed their written statement denying the

averments made in the plaint and contended that suit itself

was not maintainable amongst other grounds urged in the

written statement. Trial Court after considering rival

contentions, has found that there is no primafacie case in

favour of plaintiff and balance of convenience does not lie in

favour of plaintiff and held if a order of temporary injunction

is granted, defendant would be put to irreparable loss and

injury and as such it dismissed the application by order

dated 15.06.2013 which is under challenge in this petition.

6. It is the contention of Sri Kalyan Basavaraj,

learned counsel appearing for appellant-plaintiff that trial

Court committed a serious error in rejecting the application

on the ground that in respect of suit schedule property

plaintiff had filed an application under Order 21 Rule 97

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CPC in Execution petition No.98/2002 and same had been

rejected and also on the ground that suit in question is not

maintainable in view of Order 21 Rule 101 CPC by ignoring

Order 21 Rule 104 CPC. It is also contended by him that

every order made under Rule 101 or 103 of Order 21 CPC

would be subject to result of any suit that may be pending

on the date of commencement of the proceedings and in the

instant case, plaintiff had already filed a suit

O.S.No.209/2008 in the year 2008 and this aspect had been

lost sight of by trial Court. He would elaborate his

submission by contending that trial Court had failed to

consider that issue before the Executing Court was limited to

the extent of resisting possession of plaintiff’s lawful

possession over suit schedule property and adjudication of

claim made by the plaintiff before the Executing Court on an

application filed under Order 21 Rule 97 CPC and

dismissing of the same would not take away the right of the

applicant viz., plaintiff to file present suit in respect of suit

schedule property. He would also contend that plaintiff was

in lawful possession of suit schedule property and in the

event of temporary order of injunction is refused, he would

be dispossessed from his lawful possession and particularly

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when a comprehensive suit for declaration and injunction is

pending and as such trial Court ought to have held there is

primafacie case in favour of plaintiff. Hence, he contends

that order passed by trial Court is liable to be set aside and

prays for allowing the application.

In support of his submissions, he has relied upon

following judgments:

(1) ILR 1991 KAR. 254 MESSRS.PARAMOUND INDUSTRIES vs C.M.MALLIGA.

(2) AIR 1998 KAR 186

V.K.RAMA SETTY vs. A.GOPINATH

7. Per contra, Sri P.N. Manmohan, learned

Advocate appearing for respondent-1 would support the

order passed by the trial Court and contends that despite

decree holders having obtained an order of eviction in the

year 1996 in HRC No.6/1992 till date, they have not been

able to enjoy the fruits of said decree and plaintiff having

filed an application on same set of facts as pleaded in the

present suit, by filing an application under Order 21 Rule 97

CPC in Execution petition No.98/2002 and having suffered

an order of rejection of said application which has been

confirmed by this Court cannot be heard to contend that he

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has got his right, title and interest in respect of the property,

which is the subject matter of decree passed in HRC

No.6/1992 and said decree cannot be stalled by granting an

order of temporary injunction in the present suit. Hence, he

contends that there is neither primafacie case nor balance of

convenience in favour of appellant - plaintiff and if order of

temporary injunction is granted, defendants would be put to

irreparable loss and injury and as such, trial Court has

rightly rejected the application for temporary injunction and

as such he prays for dismissal of the appeal.

8. Having heard the learned Advocates appearing

for parties and on perusal of order in question as also

pleadings and documents filed by both parties having been

made available by the respective learned Advocates

appearing for parties during the course of their arguments, I

am of the considered view that following points would arise

for my consideration:

(1) Whether order passed by the trial Court dismissing I.A.III filed by plaintiff under Order 39 Rules 1 and 2 CPC deserves to be set aside, confirmed or modified?

(2) What order?

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9. Before delving upon rival contentions raised and

adjudicated upon by trial Court, it would be necessary for

this Court to briefly state the facts or history of the present

case which has led to filing of the present appeal and same

can be crystallised as under:

First Defendant in the present suit initiated eviction

proceedings under Section 21(1)(f) &(h) of Karnataka Rent

Control Act, 1961 against one Sri Dheeru Bai in HRC

No.6/1992 which petition came to be allowed and same was

challenged before Addl.District Judge, Chickmagalur in

Rev.(Rent) 35/1996 and said revision also came to be

dismissed. Being Being aggrieved by the said order, further

revision in HRRP No.394/2000 was filed before this Court

which also ended in dismissal and while examining the plea

of tenant for grant of time, this Court after considering

contentions of learned Advocates appearing for the parties,

granted one year time to vacate on the condition that

revision petitioner – tenant therein filing an undertaking to

the said effect. Order passed by co-ordinate Bench of this

Court while dismissing the Revision Petition filed by tenant

reads as under:

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“3. A broad consensus has been

arrived at as to how much time the

petitioner should be given for vacating the

premises. In the facts and circumstances of

the case, one year time from this day is

granted to vacate the premises on condition

that the petitioner files an undertaking to

the effect that she will withdraw all

contentions made in the petition and will

hand over vacant possession of the

premises to the respondent without

compelling the respondent to file an

execution petition, she will not induct any

tenant, she will pay the rent regularly every

month. The said undertaking shall be filed

by the tenant-petitioner within four weeks

from today. If such an undertaking is not

filed, the respondent is at liberty to

execute the order of eviction forthwith.”

(Emphasis supplied)

10. However, tenant did not file an undertaking

affidavit nor he vacated the premises. As such, an Execution

Petition No. 98/2004 came to be filed by decree holder to

enforce the judgment and decree passed by the trial Court.

In the said execution proceedings, brother of the plaintiff an

application under Order 21 Rule 97 CPC. Said application

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came to be rejected. Same was confirmed by the District

Court in Regular Appeal and also confirmed in Second

Appeal by this Court. During the pendency of the said

application, present plaintiff filed a suit O.S.No.209/2008 for

the relief of permanent injunction before the Civil Court

which plaint came to be ordered to be returned for being

presented before the jurisdictional Court in view of further

relief of declaration sought for by the plaintiff and pecuniary

jurisdiction being vested in a different Court. Thereafter,

during the pendency of said suit and after dismissal of the

application filed by his brother, plaintiff filed an application

under Order 21 Rule 97 CPC claiming title to the said

property which was the subject matter of Execution

Proceedings 98/2002, and said application came to be

rejected. In the said application, it was contended that

decree holder is attempting to execute the decree in respect

of portion of the property belonging to the obstructor which

was not the subject matter of execution proceedings. Said

contention came to be negatived and application came to be

rejected by the Executing Court. Said order was also

confirmed by lower appellate Court and affirmed by co-

ordinate Bench of this Court. For the purpose of

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convenience, dates on which above proceedings came to be

disposed of or dismissed/allowed is tabulated herein below:

06.01.1996 HRC 6/1992 allowed

05.07.2000 RRP 35/1996 dismissed

03.09.2001 HRRP 394/2000 dismissed

03.10.2002 Date of Filing of Execution Petition No.98/2002

29.05.2008 Date of filing suit in O.S.No.118/2012 ( old No. 209/2008) for want of pecuniary jurisdiction plaint-returned

27.11.2007 Order dismissing the application filed under Order 21 Rule 97 CPC filed by plaintiff’s brother

02.01.2009 Order of dismissal passed in RA No.11/2008

23.07.2010 Judgment in RSA 795/2009 dismissing the appeal

24.02.2012 Order dismissing the application filed under Order 21 Rule 97 CPC by plaintiff

11.10.2012 Order dismissing RA 30/2012 affirming the order of Executing Court

03.7.2013 Judgment in RSA 2051/2012

Appellants father claims to have purchased property under two sale deeds dated 3.7.2000 and 10.07.2000

11. This Court while disposing of the second appeal

filed by the present plaintiff in RSA No.2051/2012 has made

an observation to the following effect:

“9. However, the contention

regarding the measurement of property

belonging to Vasanthamal Datatri as in

revenue records is erroneous is open for

him to challenge in the original suit

initiated by him and pending for

consideration. It is open for appellant to

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establish his title to the property purchased

by his father from Dhirubai as the property

belonging to him, in the said proceedings.”

It is this liberty which according to plaintiff which has been

given, would entitle him to prosecute pending suit namely,

O.S.No.118/2012 (old No.209/2008) and as such, trial Court

could not have opined that suit itself was not maintainable.

12. Facts narrated herein above relating to

proceedings and their culmination by different orders are

undisputed factual aspects.

RE: POINT NO.1:

13. It is the plaintiff who is attempting to scuttle the

decree which has been passed by competent jurisdictional

Court from being executed namely, decree that has been

passed in HRC No.6/1992 on 06.01.1996 contending

interalia that description of the property in the execution

proceedings is different from the one which the plaintiff owns

and decree holder should not be permitted to execute the

said decree and obtain possession of property belonging to

plaintiff. Undisputedly, in the said HRC proceedings tenant

had appeared before this Court and had sought for time and

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after considering contentions raised by the respective

learned Advocates, this Court held that “A Broad consenses

has been arrived at as to how much time the petitioner

should be given for vacating the premises.”

14. At this juncture, it would be appropriate to

notice the claim made by the present plaintiff. Present

plaintiff claims to have purchased suit schedule property

and other remaining half (½) portion of property is said to

have been purchased by his father under registered sale

deeds dated 03.07.2000 and 10.07.2000 respectively from

legal heirs of Khimji Ramji Jolapara whose father was

respondent / judgment debtor in HRC No.6/1992 /

Execution Petition No.98/2002. It was further claimed that

under a partition effected between the family members, suit

schedule property came to be allotted in favour of plaintiff

and as such he is in possession and enjoyment of the same.

Hence, it is contended that plaintiff having an independent

title to suit schedule property, dismissal of an application

filed by him under Order 21 Rule 97 and dismissal of said

application would be of no consequence. Said contention

cannot be accepted for reasons more than one. Firstly,

plaintiff’s father had purchased said properties under these

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two sale deeds. Nothing contained in Rules 98 and 100 of

Order 21 CPC would apply to resistance by way of

obstruction in execution of a decree for the possession of

immovable property by a person to whom judgment debtor

has transferred the property after institution of the suit in

which decree was passed or to the dispossession of any such

person vide Rule 102 of Order 21 CPC. In other words, any

transfer which takes place during the pendency of

proceedings would be hit by the principles of ‘transferee

pendente lite’. In the instant case eviction proceedings was

initiated on 1992 and eviction petition came to be allowed on

06.01.1996 and both the revision petitions filed by

respondent therein came to be dismissed on 05.03.2000 and

03.09.2001 respectively. Since respondent therein did not

vacate the schedule premises an execution petition in

E.P.No.98/2002 was filed. Plaintiff claims to have purchased

suit schedule property under a sale deed dated 3.3.2000 i.e.,

after RRP No.35/1996 came to be dismissed on 5.7.2000.

On this short question itself, application filed under Order

21 Rule 97 CPC should have been dismissed.

15. Be that as it may. Executing Court had

embarked upon conducting an enquiry by affording

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opportunity to respective parties to tender evidence

exhaustively. Trial was conducted. Oral and documentary

evidence was tendered by the parties. After adjudication of

the application filed by plaintiff order came to be dismissed,

dismissing the application. This order has partaken the

character of a decree and as such, obstructor namely,

plaintiff herein after dismissal of the application filed by him

under Order 21 Rule 97 CPC on 24.02.2012 filed an appeal

in R.A.No.30/2012 which also came to be dismissed on

11.10.2012. Being aggrieved by said order, Regular Second

Appeal No.2051/2012 was filed and said appeal also came to

be dismissed on 03.07.2013. It would be appropriate to note

the observations made by the co-ordinate Bench of this

Court while disposing of RSA No.2051/2012, whereunder it

has been recorded as under:

“6. In the said proceedings, he has tried

to rely upon several documents to

demonstrate that the said properties are

separate and distinct. Further he has tried

to produce the Sale Deeds under which the

appellant’s father has purchased the

property, which has now come to his share.

However, such contention may not be

relevant at this juncture for the reason

that the vendor of appellant’s father,

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namely Dhirubai never objected to the

measurement stated in the eviction

proceedings initiated by Smt.

Vasanthamala Datatri. Therefore, now it

is not open for the appellant herein to

say that there is an error on the part of

the landlady, Vasanthamala Datatri to

claim the extent of land that does not

belong to her and to include the property of

tenant while executing the decree for

eviction.

(Emphasis supplied)

This Court has categorically held that it is not open for the

appellant (plaintiff herein) to say that there is error on the

part of respondent No.1 herein to claim that extent of land

that does not belong to her (land lady in HRC proceedings

who is first defendant herein) has been included as property

of her tenant while executing the decree for eviction on the

ground that appellant’s (plaintiff’s) father’s vendor Sri

Dhirubhai Jolapar never objected to the measurements

taken in the eviction proceedings. As such, plaintiff cannot

be heard to contend that there is overlapping of the

measurements shown in the description in the schedule to

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the Execution Petition to that of present suit schedule

property.

16. Though Mr Kalyan Basavaraj, learned Advocate

appearing for appellant – plaintiff would vehemently contend

that in view of plaint schedule property being separate,

distinct and independent property from that of property

described in the schedule to execution petition and also

contends that it was this precise ground which came to be

urged before this Court in RSA No.2051/2012 and

considering same liberty came to be granted to plaintiff to

pursue his grievance in the pending suit namely, present

suit of the plaintiff which was for comprehensive relief

namely, declaration and injunction and plaintiff having been

able to demonstrate that he had acquired title to the suit

schedule property under a partition, trial Court could not

have held that suit itself was not maintainable. He would

rely upon Rule 104 of Order 21 CPC to buttress his

argument regarding maintainability of the suit.

17. In that view of the matter, it is appropriate to

extract said provision for the purpose of considering his

contention. Rule 104 of Order 21 CPC reads as under:

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“104. Order under rule 101 or rule

103 to be subject to the result of pending

suit.- Every order made under rule 101 or

rule 103 shall be subject to the result of any

suit that may be pending on the date of

commencement of the proceeding in which

such order is made, if in such suit the party

against whom the order under rule 101 or

rule 103 is made has sought to establish a

right which he claims to the present

possession of the property.”

Rule 104 to Rule 106 of Order 21 CPC was inserted by 1976

Amendment. Prior to amendment, Rule 103 empowered the

aggrieved party to file a suit irrespective of the finding

recorded in the proceeding adjudicating the application filed

under Order 21 Rule 97 to 100 CPC. This right has been

taken away by the 1976 amendment and what has been

provided under Rule 104 is that if on the date of

commencement of proceedings in which order is made, a suit

has already been filed it would not preclude such party to

prosecute the said suit despite dismissal of an application

filed by him under Order 21 Rule 97, 98 or 100 CPC.

18. In fact, Hon’ble Apex Court in the case of

NOORDUDDIN vs. Dr.K.L.ANAND reported in 1995(1) SCC

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242 = 1994 AIR SCW 5093 has held that determination of

rights under Order 21 Rule 97 CPC would be conclusive

between the parties and the order passed thereon would be

deemed to be decreed subject to right of appeal and would

not be a matter to be adjudicated by a separate suit. It has

been held by the Hon’ble Apex Court to the following effect:

“8. Thus, the scheme of the Code

clearly adumbrates that when an

application has been made under Order 21,

Rule 97, the Court is enjoined to adjudicate

upon the right, title and interest claimed in

the property arising between the parties to a

proceeding or between the decree holder

and the person claiming independent right,

title or interest in the immovable property

and an order in that behalf be made. The

determination shall be conclusive between

the parties as if it was a decree subject to

right of appeal and not a matter to be

agitated by a separate suit. In other words,

no other proceedings were allowed to be

taken. It has to be remembered that

preceding Civil Procedure Code Amendment

Act, 1976, right of suit under Order 21,

Rule 103 of 1908 Code was available which

has been now taken away. By necessary

implication, the legislature relegated the

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parties to an adjudication right, title or

interest in the immovable property under

execution and finality has been accorded to

it. Thus, the scheme of the Code appears to

be to put an end to the protraction of the

execution and to shorten the litigation

between the parties or persons claiming

right, title and interest in the immovable

property in execution.”

19. At the cost of repetition, it requires to be noticed

that if the suit by the obstructor had been filed even prior to

the commencement of execution proceedings, it does not bar

obstructor from prosecuting said suit, even in the event of

application filed by him under Order 21 Rule 97 CPC in

execution proceedings is dismissed. This is the tenor of Rule

104 of Order 21 CPC. Any other meaning if sought to be

given would frustrate the very intent and purpose of Rule

104 or it would be otiose. In the instant case, admittedly,

execution proceedings was commenced in the year 2002 i.e.,

in execution petition No.98/2002 by the first defendant and

plaintiff herein had presented the plaint by filing a suit for

perpetual injunction in O.S.No. 209/2008 on 29.05.2008

which came to be re-numbered as O.S.No. 118/2012. In

other words, present suit came to be filed after a period of

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six years from the date of commencement of execution

proceedings. Hence, plaintiff cannot be heard to contend

that despite dismissal of his application filed under Order 21

Rule 97 CPC, present suit would still maintainable. It is

because of this precise reason, trial Court has held that

present suit would not be maintainable vide paragraph 15 of

the order under appeal. Said finding does not suffer from

any infirmity calling for interference at the hands of this

Court.

20. As rightly contended by Sri Manmohan, learned

Advocate appearing for respondent-1 that a decree obtained

by first defendant from a competent Court which has been

confirmed by first revisional Court and also by this Court

has not got fructified itself on account of persistent and

consistent blocks put forwarded by present plaintiff and his

brother which can be said by way of joint venture. This I say

so because at the first instance, present plaintiff had filed a

suit in O.S.NO.209/2008 on 29.05.2008 and was

prosecuting the said suit. No material is placed before this

Court to establish that plaintiff had any benefit of temporary

injunction in the said suit. Be that as it may.

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When the execution petition was filed by first defendant to

execute the decree passed in HRC case by filing in execution

No.98/2002 brother of plaintiff filed an application for

obstruction which came to be dismissed on 27.11.2007

confirmed by the lower appellate Court on 02.01.2009 and

confirmed by a co-ordinate Bench of this Court in RSA on

23.07.2010. Co-ordinate Bench of this Court while

dismissing the said appeal has made following observation:

“The objector has made this

application only to willfully defeat the

judgment and decree in favour of the

respondent. The HRC proceedings were filed

in the year 1992. Even after almost 20 years

the litigation still continues. There is no

legal right of the appellant that has been

infringed which requires adjudication. It is a

ploy to defeat a lawfully obtained decree”.

21. Present plaintiff’s brother did not pursue his

grievance further. Plaintiff in the instant case not only claims

to have purchased a portion of suit schedule property in the

year 2000 but also claims that in a family partition suit

schedule property was allotted to his share (details not

furnished) in the plaint. He was waiting in the wings to jump

into fray only after application filed by his brother came to be

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dismissed. He cannot pleaded ignorance for the simple

reason, he had already filed a suit in the year 2008 i.e., in

O.S.No.209/2008 on the file of Principle Civil Judge &

JMFC, Chikmagalur and as such he was fully aware of the

judgment and decree passed in HRC proceedings which had

been confirmed by two revisional Courts. Only, in the year

2012, he filed an application under Order 21 Rule 97 CPC

which came to be dismissed on 24.02.2012 and confirmed

by lower appellate Court on 11.10.2012 and affirmed by co-

ordinate Bench of this Court on 03.07.2013. This would

only indicate the conduct and modus operandi adopted by

the plaintiff and his brother to scuttle the decree passed by

the competent Court which cannot be countenanced by this

Court and as such, plaintiff deserves to be saddled with

exemplary costs. It also requires to be noticed by this Court

at the cost of repetition that plaintiff is claiming title to suit

schedule property under a partition deed and also contends

that suit property was purchased by his father along with

other adjacent and abutting property under two registered

sale deeds dated 03.07.2000 and 10.07.2000 from

Mr.Jolapura which was during the pendency of the

proceedings before this Court i.e., during the pendency of

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litigation. As such, Rule 102 of Order 21 CPC would be

attracted to the facts of the present case and claim of

plaintiff would stem through judgment debtor and though it

is contended that they have an independent title by virtue of

partition deed, ultimately when tracing of title relating to suit

schedule property is carried out, it relates back to judgment

debtor himself or in other words, plaintiff is claiming his

right to suit schedule property under judgment debtor. For

this reason also this Court is of the considered view that

order passed by trial Court holding that there is no

primafacie case in favour of plaintiff and suit itself may not

be maintainable requires to be affirmed. Hence, point No.1

is answered in the affirmative namely, holding that order

passed by trial Court does not suffer from any infirmity and

trial Court has not committed any irregularity or illegality in

passing the order under challenge and dismissing the

application for temporary injunction.

RE: POINT NO.2.

22. For the reasons aforestated, I proceed to pass

the following:

JUDGMENT

(1) Appeal is hereby dismissed with costs.

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(2) Order passed on I.A.No.III by Addl.Sr.Civil

Judge & JMFC, Chikmagalur dated

15.06.2013 in O.S.No.118/2012 is hereby

confirmed.

(3) Appellant – plaintiff to pay costs of

Rs.10,000/- to respondents-1 to 3.

Sd/- JUDGE

*sp