- 1 - HC-KAR NC: 2025:KHC:41765 WP No. 7361 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 7361 OF 2021 (GM-CPC) BETWEEN: SMT. P. ARCHANA SHENOY W/O LATE ASHOK SHENOY AGED ABOUT 51 YEARS R/AT 7-2 160/1 MATADAKANI 2ND CROSS ROAD, BOLOOR VILLAGE MANGALURU - 575 010. …PETITIONER (BY SRI CHANDRASHEKAR, ADV.) AND: 1. SRI P. ARAVINDA SHENOY S/O LATE P. DEVDAS SHENOY AGE ABOUT 54 YEARS MEERADEV MATADAKANI 2ND CROSS ROAD BOLOOR VILLAGE MANGALURU - 575 010. 2. SMT. PUSHPALATHA K W/O SRI SHASHIDHAR K AGE ABOUT 60 YEARS SARASWATHI, KODIALGUTHU E MANGALURU - 575 003. …RESPONDENTS (BY SRI N. MAHALING BHAT, ADV., FOR R-2; V/O DT:16.10.2025, TAKING STEPS TO BRING LR OF DECEASED R-1 NOT NESSARY) THIS W.P. IS FILED ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 14.12.2020 PASSED IN MISCELLANEOUS APPEAL NO.16/2019 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND CJM, MANGALORE, D.K. VIDE ANNX-L BY DISMISSING THE APPEAL FILED BY THE R-2. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41765 WP No. 7361 of 2021 THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. This writ petition under Article 227 of the Constitution of India is filed by the plaintiff with a prayer to set aside the order dated 14.12.2020 passed in Miscellaneous Appeal No.16/2019 by the Court of II Addl. Senior Civil Judge and CJM, Mangaluru, D.K. 2. Heard the learned counsel for the parties. 3. The petitioner herein had filed O.S.No.1129/2018 before the jurisdictional civil Court with a prayer to declare the will dated 26.07.2012 said to have been executed by Sri P Ashok Shenoy in favour of the defendant no.1 as a forged document and consequently to declare the sale deed dated 15.09.2017 executed by defendant no.1 in favour of defendant no.2 as illegal and void. In the said suit, she also had filed an application under Section XXXIX Rule 1 and 2 of CPC with a prayer to restrain defendant no.2 from alienating the suit - 3 - HC-KAR NC: 2025:KHC:41765 WP No. 7361 of 2021 schedule properties. The said application was opposed by defendant no. 2 by filing objections. The trial Court had allowed application on behalf of petitioner under Order XXXIX Rule 1 and 2 of CPC and the said order was challenged by defendant no.2 in M.A.No.16/2019, which was allowed by the Court of II Addl. Senior Civil Judge & CJM, Mangaluru, D.K. It is under these circumstances, the petitioner / plaintiff is before this Court. 4. Perusal of the material on record would go to show that, the petitioner is the widow of Sri Ashok Shenoy, who is the brother of defendant no.1. The petitioner has made a prayer in the suit to declare that the alleged will executed by her husband in favour of defendant no.1 is a forged document and consequently to declare that the sale deed executed by defendant no.1 in favour of defendant no.2 as null and void. In the application, I.A.No.II filed under Order XXXIX Rule 1 and 2 of CPC, the petitioner had prayed to restrain defendant no.2 from further alienating the suit schedule property which was purchased by defendant no.2 under the registered sale deed dated 15.09.2017 from defendant no.1. In the objections filed - 4 - HC-KAR NC: 2025:KHC:41765 WP No. 7361 of 2021 on behalf of the defendant no.2 to I.A.No.II, it is specifically stated that the defendant no.2 who is in possession of the suit schedule property having purchased the same under a registered sale deed has no intention to alienate the suit schedule property in which she is running a business. The trial Court having appreciated the aforesaid aspect of the matter has allowed I.A.No.II and restrained defendant no.2 from further alienating the suit schedule property and from changing the nature of the suit schedule property. 5. The appellate Court without appreciating the fact that the defendant no.2 unequivocally had stated in her objections to I.A.No.II that she had no intention to alienate the suit schedule property has set aside the order passed by the trial Court on I.A.No.II. In my opinion, the said approach of the appellate Court was not justified, more so, having regard to the fact that the appellate Court has observed that when an undertaking is given by a party, instead of granting an order on merits, the application can be disposed of by recording the undertaking. The appellate court while allowing the appeal and setting aside the order passed on I.A.No.II, has failed to even - 5 - HC-KAR NC: 2025:KHC:41765 WP No. 7361 of 2021 place on record the statement made by defendant no.2 in her objections filed to I.A.No.II before the trial court. It is trite that the appellate Court should normally be slow in interfering with an order passed on an application under Order XXXIX Rule 1 & 2 of CPC, unless it is found that said order is totally illegal and perverse in nature. Therefore, I am of the opinion that the order passed by the appellate Court cannot be sustained. 6. Accordingly, the following:- ORDER (i) The impugned order dated 14.12.2020 passed in Miscellaneous Appeal No.16/2019 by the Court of II Addl. Senior Civil Judge and CJM, Mangaluru, D.K is set aside. (ii) The order passed on I.A.No.II in O.S.No.1129/2018 stands modified and I.A.No.II stands disposed of placing on record the statement made on behalf of defendant no.2 that during pendency of O.S.No.1129/2018, the suit schedule property shall not be alienated. (iii) It is made clear that any improvement or change made to the suit schedule property - 6 - HC-KAR NC: 2025:KHC:41765 WP No. 7361 of 2021 shall be subject to the result of O.S.No.1129/2018. (iv) Since the suit is of the year 2019, the trial Court shall make endeavour to dispose of the suit as expeditiously as possible. Pending applications does not survive for consideration. Sd/- (S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 23