- 1 - NC: 2025:KHC:15321 WP No. 8220 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 8220 OF 2025 (GM-CPC) BETWEEN: THE ARMY WELFARE HOUSING ORGANIZATION (REGD) SOUTH HUTMENTS KASHMIR HOUSE, RAJAJIMARG NEW DELHI-110 011 REPRESENTED BY ITS PROJECT DIRECTOR LT COL DEEPAK RAJ MASANAGATTA (RETD) AGED ABOUT 49 YEARS S/O MR. GURURAJA M R/A BEHIND VENKATESHWARA ENGINEERING COLLEGE UTTARAHALLI MAIN ROAD BILLAMARANAHALLI JALA HOBLI BANGALORE NORTH TALUK BANGALORE – 562157. …PETITIONER (BY SRI. AJAY KUMAR N.,ADVOCATE) AND: 1. MRS. VIJAYAMMA AGED ABOUT 64 YEARS W/O LATE G V SRINIVASA IYENGAR D/O LATE B KRISHNASWAMY R/A BILLAMARANAHALLI VILLAGE VIDYANAGARA POST, JALA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562157. 2. MRS. SUSHEELAMMA AGED ABOUT 62 YEARS Digitally signed by HEMALATHA A Location: HIGH COURTOF KARNATAKA - 2 - NC: 2025:KHC:15321 WP No. 8220 of 2025 D/O LATE B KRISHNASWAMY R/AT SADAHALLI, DEVANAHALLI TALUK BANGALORE DISTRICT – 562110. 3. MRS SHASHIKALA AGED ABOUT 40 YEARS D/O MR B K SUBRAMANYA W/O MR VENAKTESH BABU 4. MRS LALITHA @ LATHA AGED ABOUT 38 YEARS D/O MR B K SUBRAMANYA W/O MR SURESH 5. MRS GAYATHRI AGED ABOUT 36 YEARS D/O MR B K SUBRMANYA W/O MR PRAKASH 6. MR SHARADAMBIKE AGED ABOUT 38 YEARS D/O MR B K RAMANTH W/O GANESH 7. MRS MANGALA AGED ABOUT 36 YEARS D/O MR B K RAMANATH W/O SRINATH 8. MR RAVIKIRAN AGED ABOUT 33 YEARS S/O MR B K RAMANATH 9. MR KISHORE AGED ABOUT 34 YEARS S/O B K SHESHADRI 10. MRS SHARADA AGED ABOUT 28 YEARS D/O MR B K SHESHADRI - 3 - NC: 2025:KHC:15321 WP No. 8220 of 2025 11. MR B K SUBRAMANYAM AGED ABOUT 63 YEARS S/O LATE B KRISHNASWAMY 12. MR B K RAMANATH AGED ABOUT 58 YEARS S/O LATE B KRISHNASWAMY 13. MR B K SHESHADRI AGED ABOUT 46 YEARS S/O LATE B KRISHANSWAMY R1 TO 13 R/AT BILLAMARANAHALLI JALA HOBLI, VIDYANAGARA POST BANGALORE DISTRICT 562157. 14. M/S PRASIDDHI PROPERTIES PRIVATE LIMITED HAVING ITS OFFICE AT NO.401/2, SWASTIK, MANANDI ARCADE F4, FIRST FLOOR, S C ROAD, SHESHADRIPURAM, BANGALORE - 560 020 COMPANY INCORPORATED UNDER COMPANIES ACT 2013 REPRESENTED BY ITS DIRECTOR MR. K SUBRAMANYA RAJU. 15. M/S PRASIDDHI PROPERTIES PRIVATE LIMITED HAVING ITS OFFICE AT NO.401/2, SWASTIK, MANANDI ARCADE F4, FIRST FLOOR, S C ROAD, SHESHADRIPURAM BANGALORE - 560 020 COMPANY INCORPORATED UNDER COMPANIES ACT 2013 REPRESENTED BY ITS DIRECTOR MR. B SRINIVASA. 16. SAMMY'S DREAM LAND (P) LTD NO.4, 3RD FLOOR, AGS PLAZA RT NAGAR, BANGALORE – 560032 COMPANY INCORPORATED UNDER COMPANIES ACT 2013. …RESPONDENTS (BY SRI. KAMALESHWARA POOJARY.,ADVOCATE FOR R1 & R2) - 4 - NC: 2025:KHC:15321 WP No. 8220 of 2025 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE ORDER DATED: 17.01.2025 (ANEXURE-A) PASSED ON I.A.NO.2 FILED UNDER ORDE XLI RULE 5 READ WITH SECTION 151 OF THE CODE OF CIVIL PRODUCED IN R.A.NO. 15016/2024 PENDING ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI BANGALORE RURAL DISTRICT AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL ORDER This writ petition is filed by defendant No.6 under Article 227 of the Constitution of India, challenging the order dated 17.01.2025 passed by V Additional District and Sessions Judge, Bengaluru Rural (sitting at Devanahalli), in R.A.No.15016/2024, whereby IA No.2 filed by the petitioner under Order 41 Rule 5 of CPC was rejected. 2. The respondents herein filed a suit for partition and separate possession in O.S.No.492/2010 before the II Additional Senior Civil Judge and JMFC, Devanahalli. By judgment and decree dated 20.01.2022, the suit came to be decreed, holding that the parties are entitled to 1/5th - 5 - NC: 2025:KHC:15321 WP No. 8220 of 2025 share each in the suit schedule properties. The petitioner herein claims to be the purchaser of suit item No.1, filed an appeal before the V Additional District and Sessions Judge, Bengaluru Rural (sitting at Devanahalli) in R.A.No.15016/2024. Along with the appeal memo, he filed IA No.1 under Section 5 of the Limitation Act and IA No.2 under Order 41 Rule 5 r/w. Section 151 of CPC. IA 1 was allowed and IA No.2 was dismissed. Being aggrieved by the same, the petitioner is before this Court. 3. The learned counsel appearing for the petitioner contended that the I Appellate Court has not considered IA No.2 on merits. Only on the ground that there is a direction by the High Court in the writ petition filed by the respondents herein, directing to dispose of the appeal within a limited period, the application has been dismissed. In the writ petition filed by the respondents herein, notice to the petitioner herein was dispensed with and they were not served with the notice. Hence, he sought for allowing the writ petition. - 6 - NC: 2025:KHC:15321 WP No. 8220 of 2025 4. Per contra, learned counsel for the respondents contended that the suit schedule properties are the joint family properties. The petitioner claims to be the purchaser and has no right or title over the property. In fact, suit item No.1 is a self-acquired property of the father of the plaintiffs. The plaintiffs are the children of B.Krishna Swamy. Therefore, they are entitled for equal share under Section 8 of the Hindu Succession Act. In support of his contention, he relied on the judgment of this Court in the case of BASAMMA SINCE DECEASED BY HER LRs. Vs. MOOKAIAH ALIAS MOOKANNA AND OTHERS reported in (2014) 4 Kar.LJ 238. 5. He further contended that the Apex Court in the case of PRADEEP MEHRA vs. HARIJIVAN J.JETHWA (SINCE DECEASED THROUGH LRs.) & OTHERS reported in 2023 LiveLaw (SC) 926 and in the case of KATTUKANKANDI EDATHIL KRISHNAN AND ANOTHER vs. KATTUKANDI EDATHIL VALSAN AND OTHERS reported in (2022) 16 SCC 71 has held that - 7 - NC: 2025:KHC:15321 WP No. 8220 of 2025 even without filing an application for final decree proceedings, the court has to conclude the final decree proceedings within six months. Even this Court in W.P.No.3497/2024 disposed of on 05.02.2024 has directed the FDP Court to dispose of the final decree proceedings within one year from the date of receipt of the copy of the order. Therefore, the petitioner, if he has any right, he can workout his remedy in the final decree proceedings. Hence, he sought for dismissal of the writ petition. 6. Heard the learned counsel for the parties and perused the writ papers. 7. The respondents herein filed a suit in O.S.No.492/2010 for partition and separate possession. The petitioner was also made as a party – defendant No.6. The claim of the petitioner is that their vendor purchased the suit item No.1 from defendant Nos. 1 to 3, who are the brothers of the plaintiffs. The trial court, by judgment and decree dated 20.01.2022 decreed the suit holding that the - 8 - NC: 2025:KHC:15321 WP No. 8220 of 2025 plaintiffs are entitled for 1/5th share each, in the suit schedule property. Thereafter, the plaintiffs filed FDP No.14/2022. In the meantime, the petitioner herein filed regular first appeal before this Court in RFA No.628/2022 which was pending till 05.01.2024 and the same has been withdrawn. Thereafter, he filed R.A.No.15016/2024 before the V Additional District and Sessions Judge, Bengaluru Rural (sitting at Devanahalli). Along with the regular appeal, he filed IA No.1 under Section 5 of the Limitation Act and IA No.2 under Order 41 Rule 5 r/w. Section 151 of CPC for staying the judgment and decree. 8. The trial court allowed IA No.1 filed under Section 5 of the Limitation Act. In respect of IA No.2, the court has not considered the same on merits. Since there is a direction by this Court in W.P.No.3497/2024 disposed of on 05.02.2024, to dispose of the final decree proceedings, within one year, on that ground, the application has been dismissed. The relevant paragraph is extracted below: - 9 - NC: 2025:KHC:15321 WP No. 8220 of 2025 “23. A point urged by the respondent No.1 to 10 that, Hon’ble High Court of Karnataka directed the Trial Court to dispose off the final decree petition within the outer limit of one year is supported by one of the documents produced under a memo dated 06.01.2025, namely judgment in RA No.15023/2022 on the file of this Court and order dated 05.02.2024 passed in W.P.No.3497/2024 (GM-CPC) on the file of Hon’ble High Court of Karnataka, Bengaluru by which Hon’ble High Court directed the III Additional Senior Civil Judge and JMFC, Devanahalli, to dispose off the FDP No.14/2022 preferably within one year from the date of receipt of copy of the order. According to the respondents’ counsel, said order was communicated to the trial court and one year expires on 22.02.2025.” 9. It is very clear from the order that the trial court, while exercising power under Order 41 Rule 5 of CPC has not given any finding on merits as to whether the judgment and decree has to be stayed or not, only on the basis of the direction given by this Court in W.P.No.3497/ 2024, directing the trial court to dispose of the final decree proceedings, dismissed the application. Since the court - 10 - NC: 2025:KHC:15321 WP No. 8220 of 2025 has failed to exercise power under Order 41 Rule 5 of CPC, the impugned order requires to be set aside and the matter has to be remitted back to the trial court for fresh consideration, in accordance with law. 10. In view of the above, the following order is passed: (i) The writ petition is allowed. (ii) The order dated 17.01.2025 passed on IA No.2 in R.A.No.15016/2024 by the V Additional District and Sessiosn Judge, Bengaluru Rural (sitting at Devanahalli) is set aside. (iii) The matter is remitted back to the trial court. (iv) Since all the parties are now represented before the trial court, the trial court is directed to dispose of IA No.2 by the end of April 2025 after hearing both the parties, in - 11 - NC: 2025:KHC:15321 WP No. 8220 of 2025 accordance with law, without being influenced by the observations made in the course of this order. (v) The parties are directed to co-operate for speedy disposal, without seeking for any adjournment. (vi) In respect of item No.1 is concerned, the trial court is directed not to draw the final decree proceedings till disposal of IA No.2. (vii) In respect of the other properties are concerned, the FDP Court may proceed with the same. (viii) In view of disposal of the petition, all pending applications stand disposed of. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM List No.: 1 Sl No.: 42