G C SIDDALINGAPPA Vs. G C VEERANNA

JUDGEMENT

(1.) This Civil revision petition is directed against the order dated 28-2-1981 passed by the learned Civil Judge, Tiptur, in M. A. 7 of 1981 granting an interim order of stay on I. A. No. 3 filed by respondent in Misc. Appeal No. 7 of 1981.

(2.) The matter arises in this way; The respondent has filed the suit bearing O. S. No. 102 of 1980 in the Court of the Munsiff at Chikkanayakanahalli for a declaration of title and for permanent injunction in respect of certain immoveable property. In that suit, an application for temporary injunction was filed and an ex parte order of temporary injunction was also passed. 1 hereafter, the petitioner had filed LA. No. 7 for vacating the ex parte order of temporary injunction. The learned Munsiff, after hearing both the sides, modified the order dated 16-4-1980 and vacated the order of temporary injunction in so far it related to 10 guntas of the suit land by the order dated 25-2-1981. On the very day, the petitioner has filed the caveat in the Court of the Civil Judge, Tiptur, expecting that the respondent is likely to file an appeal against the aforesaid order of the Munsiff modifying the order of temporary injunction and seek an interim order. The caveat has been lodged after sending a copy of the same to the respondent by registered post with acknowledgement due

(3.) After the filing of the caveat on 2.5-2-1981, the respodent has filed an appeal in the aforesaid Court of the Civil Judge, Tiptur, and in that appeal an application for temporary injunction has also been filed. In view of the caveat filed by the petitioner, the Court had rightly directed issue of notice on the appeal as well as on the application I A. No. 1 - for temporary injunction on 25-2-1981 returnable by 6-3-1981. When that was the position, on 27-2- 1981, the respondent filed an application I. A. No. 2 for advancing the case to 27-2-1981. Curiously, the learned Civil Judge advanced the case to 28-2- 1981 even though on 25-2-1981 he had directed issue of notice returnable by 6-3-1981 to the caveator (respondent in the appeal) on the memorandum of appeal as well as on the application for temporary injunction. Accordingly, the appeal was brought before the Court on 28-2-1981. On that date, the respondent filed an application I.A. 3 under Order 41 Rule 5 read with S. 151 of CPC, for staying the operation of the order under appeal, passed by the trial Court. Along with the application, an affidavit was also filed stating tha the petitioner's counsel (respondent's counsel in the appeal) refused to receive the application which was tried to be served upon him and further it was also stated that the notice of the caveat had not been served upon the respondent; therefore, it was not incumbent upon him to serve a copy of the application. On 28-2-1981, the learned Civil Judge has passed an interim order staying the operation of the order passed by the trial Court and has further directed notice to the petitioner (caveator-respondent in the appeal). It is the correctness of this order that is challenged in this revision petition.