- 1 - NC: 2025:KHC:5607 WP No. 51449 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 51449 OF 2019 (GM-CPC) BETWEEN: 1. SMT. K. SUSHEELA SINCE DEAD BY HER LRS., MR. PRITHAM KUMAR, S/O. LATE K. SUSHEELA, AGED ABOUT 56 YEARS, R/AT. LR 28, BDA LAYOUT, OPP. S.G. INTERNATIONAL SCHOOL, NANDINI HILL LAYOUT, BENGALURU-560 096. 2. RAMESH ANAND. S, S/O. LATE K. SUSHEELA, AGED ABOUT 54 YEARS, R/AT FLAT NO.23, VALERIE MANOR, BRITTO LANE, FALNIR, MANGALORE-575 001. 3. SUSHEELA KUMAR, S/O. LATE K. SUSHEELA, AGED ABOUT 53 YEARS, R/AT. AITHAPPA’S COMPOUND, DOOR NO.13-2-211, K.S RAO ROAD, HAMPANKATTA, MANGALORE-575 006. 4. MRS. REKHA PRAKASH KUMAR, D/O. LATE K. SUSHEELA, AGED ABOUT 52 YEARS, R/AT DOOR NO.1-N-9-582/4, KOTEKANI FIRST CROSS, ASHOKNAGAR POST, Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:5607 WP No. 51449 of 2019 URVASTORE, MANGALORE-575 006. …PETITIONERS (BY SRI. SACHIN B.S., ADVOCATE) AND: 1. SMT. K. SAROJINI, W/O. U. RAMACHANDRA, AGED ABOUT 78 YEARS, R/AT. GANESH NILAYA, PERPALADY, DEREBAIL, MANGALORE-575 006. 2. 3. 4. SMT. K. NALINI, SINCE DECEASED BY LR’S K. KRISHNA, H/O K NALINI RAJANI, D/O. K. NALINI K. RENUKA, D/O K. NALINI, RESPONDENT NOS.2 TO 4 ALL ARE R/AT NELLIKUNG, DURGAMBIKA ROAD, KASARGOD-671 121. 5. 6. K. MOHAN, SINCE DECEASED BY LR’S MRS. MEENAKSHI, W/O. LATE K. MOHAN, ADULT. MRS. VIDHYA, D/O LATE K. MOHAN, AGED ABOUT 44 YEARS, - 3 - NC: 2025:KHC:5607 WP No. 51449 of 2019 7. 8. MR. SANDEEP, S/O. LATE K. MOHAN, AGED ABOUT 42 YEARS, MRS. SANDHYA, D/O. LATE K. MOHAN, AGED ABOUT 36 YEARS, RESPONDENT NOS.5 TO 8 ARE R/AT LATE AITHAPPA’S COMPOUND, K.S. RAO ROAD, OPP: OLD BUS STAND, MANGALORE-575 001. 9. K. SHRIDHARA, S/O. LATE K. SHAMA, AGE: MAJOR PILAR PRAKASH NAGAR, SOMESHWARA VILLAGE, THOKKOTHU, MANGALORE TALUK, P.O. KOTEKAR, D. K. DISTRICT-575 022. 10. K. SUDHAKARA, S/O. LATE K. SHAMA, AGE: MAJOR, C/O. LATE AMBAR NARAYANA, SADASHIVA TEMPLE CROSS ROAD, NAYABAZAR, UPPALA, KASARGOD TALUK, P.O. UPPALA-671 322. 11. M. SRINIVAS, S/O. LATE K. SHAMA, AGE: MAJOR, R/AT GIRI NILAYA, SITE NO.54, 1ST BLOCK, KATIPALLA, MANGALORE TALUK, P. KATTIPALA, D.K. DISTRICT-575 022. …RESPONDENTS (BY SRI. SHYAM KOUNDINYA A.S., ADVOCATE FOR R1; R5, 6, 8 AND 11 ARE SERVED AND UNREPRESENTED; - 4 - NC: 2025:KHC:5607 WP No. 51449 of 2019 VIDE ORDER DATED 02.02.2021 NOTICE TO R3 AND 4 IS HELD SUFFICIENT; VIDE ORDER DATED 23.05.2022, R3 AND R4 ARE TREATED AS LR’S OF DECEASED R2) THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 05.11.2019 PASSED ON IA.NO.2 IN FDP. NO.14/2008 ON THE FILE OF 1ST ADDITIONAL CIVIL JUDGE MANGALORE D.K. VIDE ANNEXURE-A AND ALLOW I.A.NO.2 AND ETC. THIS PETITION, COMING ON FOR ORDERS, 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.2 filed under Order 1 Rule 10(2) Read with Section 151 of CPC in FDP.No.14/2008 dated 05.11.2019 by the I Addl. Civil Judge, Mangaluru, Dakshina Kannada, the impleading parties have come before this Court. 2. It is the case of respondent No.1 herein that she had filed the suit O.S.No.550/1996 seeking partition and separate possession. That came to be decreed by judgment and decree dated 07.04.2003. Thereafter, defendant No.1 in the suit had preferred an appeal and thereafter, filed a second - 5 - NC: 2025:KHC:5607 WP No. 51449 of 2019 appeal before this Court. All the appeals came to be dismissed and preliminary decree has attained finality. Then, the plaintiff had initiated the final decree proceedings. In the final decree proceedings, this application came to be filed under Order 1 Rule 10(2) Read with Section 151 of CPC. It is the case of the petitioners herein that the property belongs to one Kalyani, she had executed a settlement deed in favour of the petitioner’s mother on 16.06.1952. It is also the case of the plaintiff that the said Kalyani had executed a settlement deed in favour of the plaintiff’s mother. It is the case that they have come to know about the pending proceedings, the suit and the judgment and decree passed. It is stated that the tenant had informed them that some people from the Court have come along with the plaintiff in the suit and others and measured the property along with other properties and immediately, they have contacted Mohan, who is defendant No.2, who is staying in the house situated in the other parts of the property. On enquiry they came to know about the proceedings and have come up with this application to implead them in the suit. The plaintiff had filed his objections and the Trial Court had dismissed the application by way of the order impugned. - 6 - NC: 2025:KHC:5607 WP No. 51449 of 2019 3. While dismissing the application, the Trial Court had observed that the proposed applicant has no remedy during the final decree proceedings but the remedies that are available to the petitioner are by challenging the preliminary decree under Section 97 of CPC if so her property has to be excluded; by causing obstruction of delivery of the property in the execution proceedings and also to file a claim petition by contending that she is the owner and possession of the property to the extent of her share 2 acres 75 cents making the Court to adjudicate her rights; and the proposed applicant can file a suit for declaration that she is the owner of the property measuring 2 acres 75 cents and for injunction to prevent the parties from taking possession of that property. The Trial Court had relied on the judgment of the Andhra Pradesh High Court in case of Aitha Dubba Rajam @ Raju Vs. Aitha Pochaiah1 wherein it was held that the right of third party in respect to suit property cannot be adjudicated in the final decree proceedings. The Trial Court had also observed that the preliminary decree has not been challenged and the Trial Court cannot go beyond the preliminary decree. The Trial Court is only obligated to 1 Laws (APH) 2007 1 40 - 7 - NC: 2025:KHC:5607 WP No. 51449 of 2019 demarcate the shares or adjust the share of purchaser who was a party in the original suit in final decree proceedings as per preliminary decree. Accordingly, held that the question of impleading the proposed applicant will not arise in the final decree and dismissed the application with costs of Rs.1,000/-. 4. Learned counsel appearing for the petitioners/ applicants submits that to avoid multiplicity of proceedings an application is filed under Order 1 Rule 10(2) Read with Section 151 of CPC, once he is impleaded as a party then he can raise all his objections and the Trial Court can adjudicate the dispute between the parties. He submits that he is setting up an independent title to that of the plaintiff and he is also deriving title from Kalyani, who had executed a settlement deed in favour of petitioner’s mother. He relied on the two judgments this court in case of Aswathamma Vs. H.M. Vijayaraghava2 where the Court observed as follows: (18) IN the case of Shagun Chand v. Data Ram S., AIR 1927 Allahabad 465 (DB) Hon'ble Mr. Ashworth, J. one of the member of the Division Bench observes:-"i am of the opinion that the proceedings for a final decree are merely a continuation of the 2 1999 0 AIR (KAR) 21 - 8 - NC: 2025:KHC:5607 WP No. 51449 of 2019 suit as instituted for the purpose of a preliminary decree and that the provisions of O. 1, R. 10(2) of the Civil Procedure Code, 1908 governing the joinder of an additional party during the pendency of a suit will apply to this case. "hon'ble Mr. Justice Sir Iqbal Ahmad, J., constituting the Bench along with Ashworth, J., has been pleased to observe as under:"that being so, I am not prepared to hold that under no circumstances has the Court jurisdiction, after the passing of the preliminary decree and before the final decree has been passed, to implead as defendants to the suit persons who were not originally impleaded as defendants and were not parties to the preliminary decree. But the question whether or not persons who were not originally made defendants should be made defendants in the suit is a question entirely within the discretion of the Court as is apparent by the provisions of O. 1, R. 10 (2) of the Civil Procedure Code, 1908" He has also relied on the judgment of High Court of Andhra Pradesh in case of Mareddy Venkateswarlu Vs. Bondili Lakshmi Bhai3 where the Court observed as follows: 10. Considering the arguments made by both the parties, no doubt as per the rulings of the various High Courts and Hon'ble Supreme Court that there is no bar or prohibition to pass any number of preliminary decrees. But it is needless to state that 3 2021 0 Supreme(AP) 328 - 9 - NC: 2025:KHC:5607 WP No. 51449 of 2019 once preliminary decree is passed if the others or third parties shows that their rights are affected by virtue of the preliminary decree, then only, the same can be ordered. But at the same time, the Court also to see that after passing preliminary decree and that too knowing about the pendency of a substantial suit, whether they can be impleaded as party defendants in the final decree proceedings. 11. No doubt in the present case, as contended by the learned Counsel for the respondents that there is a difference in the schedule mentioned in the registered sale deed as well as the suit schedule properties and apart from that the pendency of suit filed by the petitioner i.e. proposed defendant is also pending before the same court. In view of the above, there are no merits in the I.A filed for impleading proposed party as a defendant and accordingly, after taking relevant facts into consideration, the court below has rightly dismissed the I.A. filed by the petitioner. Relying on these judgments, learned counsel appearing for the petitioners submits that there is no impediment for the Court to implead the petitioners to the suit, so that the dispute between the parties can be adjudicated and put a quietus to the litigation by avoiding multiplicity of proceedings. - 10 - NC: 2025:KHC:5607 WP No. 51449 of 2019 5. Learned counsel appearing for the respondents submits that the suit is filed in the year 1996. A preliminary decree was passed on 07.04.2003. The defendant has filed the appeal and finally RA.No.160/2003 was dismissed on 01.08.2008 and against that RSA.No.50/2009 was filed, which was dismissed by this Court on 09.09.2010. After dismissal of that, when the final decree proceedings are initiated, then this petitioner has come up with the instant application. He submits that the Trial Court had dismissed the petition with costs. A preliminary decree was passed on 07.04.2003 which was affirmed by this Court on 2010, even till now the plaintiff is not in a position to enjoy the fruits of the decree. It is submitted that this application is a collusive application and at the behest of defendant No.2, this petition was filed seeking relief under Order 1 Rule 10(2) Read with Section 151 of CPC. It is submitted that the Trial Court had passed the reasoned order wherein the Trial Court has categorically mentioned what are the remedies available. Learned counsel further submits that if they really want to contest the matter they can file an application under Order 21 Rule 97 of CPC or by filing a separate suit then the rights can be adjudicated. They have - 11 - NC: 2025:KHC:5607 WP No. 51449 of 2019 come up with this writ petition and this writ petition is of the year 2019 and the final decree proceedings are stayed from the last 6 years. The suit was instituted about 30 years back and it's about 15 years back the rights of the petitioners was affirmed by this Court while dismissing the RSA. It is submitted that this is nothing but a pure abuse of the process of law. 6. Having heard the learned counsels on either side, perused the material on record. The preliminary decree was passed on 07.04.2003 and the appeal filed by defendant No.2 was dismissed in the year 2010. Now, this application was filed before the Court in the year 2019 stating that they have an independent right and title to the property. According to them the judgment is not binding on them and in the final decree proceedings they want to implead themselves. This Court had perused the judgment relied on by the learned counsel appearing for the petitioner and when there is a remedy available to the party to get his rights effectively adjudicated by the Court and why he is only insisting on an application under Order 1 Rule 10 of CPC is not known. If he files an application in the execution under Order 21 Rule 97 of CPC and if any judgment is passed, he will have a remedy of filing the regular - 12 - NC: 2025:KHC:5607 WP No. 51449 of 2019 appeal before the Appellate Court, where the rights of the parties will be adjudicated in a full fledge manner or else he has a remedy of filing a separate suit stating that the judgment and decree passed is not binding on him. If the petitioners are really interested in effectively getting their disputes adjudicated atleast after the order passed by the Court they would have availed the remedies that are available to them. The judgments which are relied on by the petitioners do not apply to the facts and circumstances of this case, where a third party is setting up an independent title to the properties and it is not even his case that he is one of the member of the joint family and without impleading him, the suits are filed and the judgment and the decree is obtained. It is not even his case that he is a purchaser from anyone of the joint family members. The Trial Court had rightly and categorically observed the remedies that are available to the plaintiff and had dismissed the application with costs of Rs.1000/-. In the considered opinion of this Court, this is nothing but a pure abuse of process of law and the petitioner could successfully stall the proceedings from the year 2019 till 2025 that too without any basis and all these applications are filed to see that the final decree proceedings - 13 - NC: 2025:KHC:5607 WP No. 51449 of 2019 are not concluded. In that view of the matter, this Court is passing the following: ORDER i. Accordingly, the writ petition is dismissed with costs of Rs.25,000/-. ii. As observed by the Trial Court petitioners are at liberty to avail the remedies available to them under law subject to the law of limitation and in accordance with law. iii. All I.As., in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN List No.: 1 Sl No.: 12