- 1 - HC-KAR NC: 2025:KHC-K:2875 MFA No. 201480 of 2025 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 5TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI MISCL. FIRST APPEAL NO.201480 OF 2025 (CPC) BETWEEN: SMT. NAJMUNNISSA BEGUM D/O LATE SHAIK YOUSUF W/O MOHD MAQSOOD AHMED, AGE: 43 YEARS OCC: HOUSEHOLD AND PRIVATE WORK, R/O H. NO. 5-992/13 YADULLA COLONY, ROZA (K) TQ. AND DIST. KALABURAGI …APPELLANT (BY SRI. YASHAS S. DIKSHIT, ADVOCATE) AND: 1. SMT. REHAMATHUNISSA BEGUM W/O LATE SHAIK YOUSUF, AGE: 64 YEARS OCC: HOUSEHOLD, R/O H. NO. 5-992/13, YADULLA COLONY, ROZA (K), TQ. AND DIST. KALABURAGI-585103 2. SAMREEN FATIMA W/O SHAIK NASERUDDIN, AGE: 34 YEARS OCC: PROP APSARA ENTERPRISES OFFICE AT PLOT NO. 28 AND 29, UMAR COLONY, AZADPUR ROAD, KALABURAGI-04 Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-K:2875 MFA No. 201480 of 2025 3. THE BRANCH MANAGER, CANARA BANK, SUPER MARKET MAIN BRANCH, KALABURAGI-585103. 4. THE REGIONAL MANAGER, CANARA BANK, MAHANTH MANSION, I, II, III FLOOR, S. B. TEMPLE ROAD, SRI. MAHANTH NAGAR KALABURAGI-02 …RESPONDENTS THIS MFA IS FILED UNDER ORDER 43 RULE 1 READ WITH SEC.104 OF CPC, BY THE ADVOCATE FOR APPELLANT, PRAYING TO SET ASIDE THE ORDER DATED 22.05.2025, PASSED BY II ADDL. DISTRICT AND SESSIONS JUDGE AND VACATION JUDGE, KALABURAGI IN V.C. O.S. F.R.NO.44/2025, WHICH IS AT ANNEXURE-F AND THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE RAVI V HOSMANI) Challenging order dated 22.05.2025 refusing to grant ex- parte ad interim injunction, this appeal is filed. 2. Sri Yashas Dikshit, learned counsel for appellant submits that appellant was plaintiff in V.C.O.S.FR.no.44/2025 filed for declaration against mortgage deeds dated 03.11.2015 & 28.01.2016 and for perpetual injunction restraining - 3 - HC-KAR NC: 2025:KHC-K:2875 MFA No. 201480 of 2025 defendants from interfering with plaintiff’s possession over suit property. 3. It was submitted suit claim was based on assertion that husband of defendant no.1 had purchased an open yard consisting of 3 tin shed rooms with open latrine and bathroom bearing H.no.5-992/13 measuring 60’ + 66’/2 X 46 = 3216 sq.ft. situated in Badepur, Roza (k) Gulbarga in CTS 306, Block no.III vide registered sale deed dated 15.12.1984. Thereafter husband of defendant no.1 gifted said property to defendant no.1 under registered gift deed on 13.03.2009. Subsequently, defendant no.1 gifted a portion of same in favour of plaintiff under gift deed dated 26.07.2013. Said portion was suit property. In view of above, defendant no.1 had no transferable right or interest in suit property. Despite same, colluding with defendant no.2, defendant no.1 had mortgaged suit property in favour of defendants no.3 and 4-bank and obtained financial assistance. Plaintiff was unaware of same. However, plaintiff came to know about its auction from newspaper on account of alleged default committed by defendant no.1. It is submitted that since property had come to plaintiff mortgage was illegal. - 4 - HC-KAR NC: 2025:KHC-K:2875 MFA No. 201480 of 2025 Therefore, plaintiff was constrained to file suit for declaration and injunction. 4. In said suit, plaintiff had also filed an application in IAs.no.2 and 3 under Order 39 Rule 1 and 2 for restraining defendants no.3 and 4 from alienating suit property to any third parties and from interfering with plaintiff’s peaceful possession. Though along with application, plaintiff had also produced copies of gift deed i.e., title deeds of plaintiff in respect of suit property and had sought for grant of ex-parte order of injunction, trial Court however ordered issuance of emergent notices and deemed denied exparte order. 5. It was submitted said order was oblivious of fact that there was eminent threat of issuance of certificate of sale to purchasers. Without appreciation of said facts and circumstances, impugned order was passed. Therefore, same was contrary to law and sought for allowing appeal. 6. Heard learned counsel and perused impugned order as well as other materials filed along with appeal. 7. It is seen that appeal is filed against refusal of grant of ex-parte order of temporary injunction, applications i.e. - 5 - HC-KAR NC: 2025:KHC-K:2875 MFA No. 201480 of 2025 IAs.no.2 and 3 are still pending before trial Court. While passing impugned order learned trial Judge has taken note of fact that defendants no.3 and 4 are bank authorities seeking to pursue recovery proceedings against suit property mortgaged in their favour. Trial Court expressed legality of plaintiff’s claim under un-registered gift deed would require to be examined, which according to learned counsel for appellant was contrary to decision of Hon’ble Supreme Court in Mansoor Saheb and Others V. Salima and Others1. On perusal, it is seen, it was held that there was no bar for execution of un-registered gift deed by Mohammedans and such gift deed could not be invalidated on ground of being un-registered. But observations by trial Court is only to effect that legality of un-registered gift deed would require examination. Other reason stated that interim injunction was in teeth of recovery proceedings would appears sufficient justification for refusing ex-parte ad-interim injunction. 8. It is seen that trial Court had noted urgency and ordered notice returnable by 04.06.2025. To a query by this 1 2024 INSC 1006 - 6 - HC-KAR NC: 2025:KHC-K:2875 MFA No. 201480 of 2025 Court, it was stated that next date of hearing is fixed on 16.06.2025. This would indicate that trial Court is expediting consideration of applications. Taking note of circumstances presented as well as reasons assigned by trial Court, I do not find any justification to interfere with except to direct trial Court to expedite consideration of IAs.no.2 and 3 as far as possible within a period of 15 days from date of receipt of certified copy of this order. To enable same, plaintiff/appellant is reserved liberty to seek for preponement of date of hearing of suit by filing appropriate application. If application is filed, trial Court is directed to consider same in light of observations above and dispose of IAs.no.2 and 3 as far as possible within a period of 15 days from date of receipt of certified copy of this order. With above directions, appeal is dismissed. It is clarified that no opinion is expressed on merits of applications and trial Court would be at liberty to arrive at independent conclusion. Sd/- (RAVI V HOSMANI) JUDGE MSR List No.: 1 Sl No.: 54