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B. LEELA & ANOTHER V/S S. ANANTHANARAYANA SHETTY, decided on Thursday, July 28, 2016.
[ In the High Court of Karnataka, Writ Petition Nos. 1511 & 1512 of 2016 (GM-FC). ] 28/07/2016
Judge(s) : A.S. BOPANNA
Advocate(s) : Roopesha B. K.N. Nitesh, K.V. Narasimhan.
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  "2017 (4) KantLJ 193"  ==   ""  







    A.S. Bopanna J.1. The petitioners are before this Court assailing the order dated 3-12-2015 passed on the memo filed by the respondent herein who was the 1st petitioner in Misc. Petition No. 22 of 2012 The 1st petitioner herein is the daughter-in-law and the 2nd petitioner herein is the granddaughter of the respondent herein. Initially the petitioners herein filed a suit in O.S. No. 173 of 1997 against the respondent herein and his wife Smt. S.A. Rathnamma seeking grant of maintenance and towards such maintenance charge over the properties was also sought. The Family Court by its judgment dated 28-5-2011 has decreed the suit in part granting the maintenance at Rs. 15 000/- per month and the respondent herein who was the 1st defendant in the suit has been directed to pay the said sum Further charge is created on the suit schedule property to ensure payment of the maintenance.2. The respondent herein along with his wife had filed Misc. Petition No. 22 of 2012 under Order 47 Rule 1 of Civil Procedure Code 1908 seeking review of the judgment passed in O.S. No. 173 of 1997. During the pendency of the review petition the 2nd petitioner therein namely the wife of the respondent herein Smt. S.A. Rathnamma died. The respondent herein accordingly filed a memo dated 28-3-2015 reporting the death of the petitioner 2 therein and requested time to bring the L.Rs on record. Subsequently another memo dated 1-8-2015 was filed wherein it was indicated that the petitioner 1 therein i.e. Ore respondent herein is the only legal representative of the deceased 2nd petitioner therein and as such had sought leave to proceed with the matter as lie is already on record. The said memo was objected to by the petitioners herein vide a detailed objection statement dated 28-8-2015. The Court below by the order dated 3-12-2015 has accepted the memo filed by the 1st petitioner therein and has permitted him to remain on record as the sole legal representative of the deceased 2nd petitioner. The petitioners herein being aggrieved by the said order are before this Court.3. Having noticed the sequence of events and having heard the learned Counsel for the parties I have perused the petition papers. Insofar as the judgment passed by the Family Court at the first instance with regard to the payment of maintenance no doubt it has been decreed as against the respondent herein. However to secure payment of the said amount charge has been created over the suit schedule properties. It cannot be in serious dispute that both the defendants namely the respondent and his wife had joint right title and interest over the suit schedule properties. The learned Counsel for the respondent would however contend that a Will has been executed and the understanding was that the property would devolve on the survivor on the death of the other co-owner.4. Though that be the position that by itself cannot be a reason to accept the memo filed by the respondent without an appropriate enquiry being held as contemplated under Order 22 Rule 5 of the CPC to determine the legal representative of a deceased party to the suit if a dispute is raised in that regard. That apart in the instant case the appropriate legal representatives are to be brought on record as it would assume significance in view of the fact that a charge has been created over the properties which are the suit schedule properties. If the other children of the 2nd petitioner to the miscellaneous petition have any interest in the said property unless they are brought on record the order to be passed would not be valid in law and would also create multiplicity of litigations. Therefore to ensure that an appropriate consideration with regard to the impleadment of the legal representatives to be considered by the Court below the order dated 3-12-2015 impugned herein is set aside.The Court below shall now take note of the memo filed by the respondent and also the objections filed to it by the petitioners herein and pursuant to the same hold an enquiry as contemplated under Order 22 Rule 5 of the CPC and thereafter pass fresh orders in accordance with law.All contentions in that regard are left open to be urged before the Court below.Petitions are accordingly disposed of.