Syed Peer vs S. Bashu

B. Manohar, J.—The petitioner is the first plaintiff in O.S. No. 116/2010 on the file of the Civil Judge, (Sr. Dn.), Shivamogga. Being aggrieved by the order, dated 21.10.2011 made on a memo filed by the respondent No. 5 herein, the petitioner filed this writ petition.

The plaintiffs filed a suit seeking for declaration declaring that the sale deed dated 4.10.2010 executed by defendant Nos. 1, 6 and 7 in favour of defendant No. 5 in respect of item No. 11 of "A" schedule property is not binding on the plaintiffs and also sought for partition and separate possession. In the said suit, I.A. No. 1 was filed under Order 39 Rules 1 and 2 of CPC seeking for interim order of temporary injunction restraining the defendants from alienating, encumbering or creating any charge and also change of khatha in any manner in respect of suit schedule property pending disposal of the suit. The Trial Court by its order dated 23.10.2010 granted an exparte interim order. The said interim order was extended from time to time. The respondent No. 5 herein filed a memo on 22.7.2011 for modification of the interim order granted earlier. In the memo he has undertaken that he will not alienate the suit schedule property and he has sought for change of khatha in respect of item No. 11 in "A" schedule property. The said memo is pending consideration for a long time. On 20.9.2011 the case was posted for the evidence of the parties finally on 21.10.2011. On 21.10.2011 the Court passed the order on memo, which reads as under:

"Heard Sri H.G. & KNV regarding interim order it is seen that several relief have been sought. Sri HGN submitted that the plaintiffs wants to take indirect advantage of it. It is in established principle of law that is one I.A. one relief to be sought. Hence it is made it clear that the interim order prayed on I.A. 1 is to the effect that the deft opponent shall not alienate the property till disposal of suit whether to change the katha not in left to the discretion of tashildar, this is the clarification made with regard to interim order passed on I.A. 1. Posted for plaintiffs evidence by 21/11.

Call on 21/11"

Being aggrieved by the order passed by the Trial Court on the memo filed by respondent No. 5, the petitioner filed this writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the orders impugned and other relevant records.

The records clearly disclose that the plaintiffs had filed a suit seeking for declaration and other reliefs of partition and separate possession. Pending disposal of the above suit, in order to protect the interest of the parties, an exparte interim order was granted directing the parties not to alienate, encumber, creating of charge or change of khata. The contesting respondent had not filed any application for vacating the exparte interim order in the suit. On the other hand, a memo was filed seeking for modification of exparte interim order. The Trial Court without affording any opportunity, modified the interim order granted earlier. The order passed by the Trial Court is contrary to law. Unless the contesting party files a application seeking for modification of the interim order, the Trial Court cannot pass orders on memo. The orders passed by the Trial Court on the memo cannot sustain under law. Accordingly, the order dated 21.10.2011 is set aside. It is open to the respondent No. 5 to make necessary application seeking modification of exparte interim order.

With the above observations, this writ petition is allowed and the order passed by the Trial Court is quashed.