- 1 - NC: 2025:KHC:3708 WP No. 43648 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 43648 OF 2019 (GM-CPC) BETWEEN: B.H. UDAYA PAI S/O B.H.GANAPATHY PAI AGED ABOUT 48 YEARS R/AT MAIN ROAD, P.O.PANEMANGALURU-574 231 BANTWAL TALUK(DK) …PETITIONER (BY SRI. M.SUDHAKAR PAI, ADVOCATE) AND: 1. VAMANA NAYAK S/O DR.P.VISHWANATHA NAYAK, AGED ABOUT 25 YEARS R/AT BONDALA HOUSE, P.O.PANEMANGALURU-574 231 BANTWAL TALUK(DK) 2. SMT.VINODA @ VIKAYALAKSHMI W/O LATE VARADARAYA NAYAK, AGED ABOUT 88 YEARS 3. SRI.VASUDEVA NAYAK S/O LATE VARADARAYA NAYAK, AGED ABOUT 62 YEARS 4. DR.P.VISHWANATHA NAYAK S/O LATE VARADARAYA NAYAK, AGED ABOUT 58 YEARS 5. SRI.VENUGOPAL NAYAK S/O LATE VARADARAYA NAYAK, AGED ABOUT 54 YEARS RESPONDENT (2) TO (5) ARE Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3708 WP No. 43648 of 2019 R/AT 18-137, V.V.NIVESHAN, MAIN ROAD, P.O.PANEMANMGALURU-574 231 BANTWAL TQ (DK) …RESPONDENTS (BY SRI.PRASANNA V.R., ADVOCATE FOR R1 R2, R3, R4, R5 ARE SERVED AND UNREPRESENTED) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:04.09.2019, ON I.A.NO.20, IN O.S.NO.2/2010, ON THE FILE OF PRL. SENIOR CIVIL JUDGE & JMFC, BANTWAL, DK VIDE ANNEXURE-J. THIS PETITION, COMING ON FOR ‘DISMISSAL’, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in I.A.No.20 in O.S.No.2/2020 dated 04.09.2019 by the Principal Senior Civil Judge and JMFC., Bantwal, Dakshina Kannada, defendant No.5 is before this Court. 2. It is the case that respondent No.1 being represented by his mother, had filed the suit against his father, uncles and grandmother and the petitioner herein, who is the purchaser in the proceedings initiated by the bank under the SARFAESI Act. The suit filed is for seeking partition and separate possession of the B schedule properties and buildings situated on them into 32 equal shares and to grant 3/32 share - 3 - NC: 2025:KHC:3708 WP No. 43648 of 2019 and income from the said properties from the date of the suit till possession of his share. The suit B schedule properties are item Nos.1, 2 and 3. Item No.3 is a property situated in Sy.No.29/2 to an extent of 0.59 acres. This property was mortgaged to the bank and when the plaintiff’s father and other uncle, who had mortgaged the property were failed to pay the loan, the SARFEASI proceedings were initiated. The sale was conducted on 06.01.2009. They have approached the DRAT and after questioning the sale certificate, they have filed this writ petition before this Court and this Court had disposed of the Writ Petition permitting the parties to avail the appropriate remedy before the DRAT and when defendant No.1 to 4 in the suit have approached the DRAT, that came to be dismissed. Thereafter, the present suit is filed also arraying the purchaser of the suit item No.3 of the B schedule property as defendant No.5. In the suit, several issues are framed, along with that an additional issue is framed, which reads as follow: “Whether the defendant No.5 proved that the suit of the plaintiff in respect of suit B schedule, item no.3 property is barred under section 34 of the SARFAESI Act?” - 4 - NC: 2025:KHC:3708 WP No. 43648 of 2019 3. Thereafter, the present application came to be filed under Order 14 Rule 2 of the CPC, to treat this additional issue No.6 as a preliminary issue. That came to be dismissed by order impugned. While dismissing the said application, the Trial Court had observed that no doubt, the contention of defendant No.5 is that he is the purchaser of the suit B schedule item No.3 property under the auction conducted by State Bank of India under SARFAESI Act which cannot be questioned before the Civil Court. But it is pertinent a note that by treating the additional issue No.6 as a preliminary issue, the entire suit in respect of all the schedule properties cannot be disposed off and as already all the issues are set up and the trial has commenced, at that stage, the Trial Court felt that it needs to be treated as a preliminary issue and accordingly, dismissed the application. 4. Learned counsel appearing for the petitioner/ defendant No.5 submits that when there is a clear bar under Section 34 of the SARFEASI Act, when all the defendants, who were unsuccessful before this Court as well as before the DRAT and by setting up the minor, they have filed the suit. It is stated that it is a clear abuse of process of law where the relief - 5 - NC: 2025:KHC:3708 WP No. 43648 of 2019 they could not get directly and were unsuccessful. They want to have it indirectly by one way or the other they want to protract the proceedings and in fact, he had purchased property in the year 2009 and a sale certificate is issued in view of the pendency of the suit, even till today he is not able to enjoy the property. Learned counsel further submits that in view of Section 34 of the SARFEASI Act, whether the suit against defendant is maintainable or not, is a pure question of law which has to be decided by the Court as a preliminary issue and the defendants are entrusted only as far as the suit B schedule item No.3 property is concerned and the remaining issue, the Court can deal with between the parties and the Trial Court ought to have entertained the application filed by defendant No.5. He had relied on the judgment of the Hon’ble Apex Court in case of Jagadish Singh Vs. Heera Lal and others1. 5. Though notice is served on respondent Nos.2 to 5, no vakalath is filed on their behalf. 6. Learned counsel appearing for respondent No.1/ plaintiff submits that the additional issue No.6 has a bearing in 1 2014 (1) SCC 479 - 6 - NC: 2025:KHC:3708 WP No. 43648 of 2019 all the other issues and all the issues are interconnected and the Trial Court had rightly observed that, by deciding issue No.6. There cannot be a quietus to the litigation and had rightly rejected the application filed by them to treat additional issue No.6 as a preliminary issue. He submits that there are no grounds to interfere with the well considered order passed by the Trial Court. 7. Having heard the learned counsels on either side, perused the material on record. Undisputed facts in this case are item No.3 in the B schedule property is the property which was purchased by defendant No.5 in the auction conducted by the bank in the SARFEASI proceedings in the year 2009 and the said sale was called in question by all the co-sharers i.e., the defendants by approaching the DRAT, by coming before this Court and also by filing an appeal before the DRAT and they were unsuccessful. Thereafter, the present suit was filed by the son of one of the brother represented by his mother. An additional issue is framed with regard to the continuation of the proceedings against defendant in view of the bar under Section 34 of the SARFEASI Act. This Court had perused the order passed by the Trial Court. The Trial Court had failed to consider - 7 - NC: 2025:KHC:3708 WP No. 43648 of 2019 the fact that it is a pure question of law which needs to be decided and which can be decided as a preliminary issue, but looking at the fact that all the defendants have suffered an order before the DRAT and also in the Writ Petition. In that view of the matter, in the considered opinion of this Court, the order passed by the Trial Court is contrary to the facts in law. Hence, this Court is passing the following: ORDER i. The order impugned in I.A.No.20 in O.S.No.2/2020 dated 04.09.2019 by the Principal Senior Civil Judge and JMFC., Bantwal, Dakshina Kannada, is set aside and the I.A. filed by the petitioner is allowed. ii. Accordingly, the writ petition is allowed. iii. All I.As., in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN List No.: 1 Sl No.: 5