DAMODAR RAJU B.K. Vs. SARITHA

JUDGEMENT

(1.) THE petitioner is before this Court assailing the order dated 19.10.2010 passed in O.S. No. 200/2009. The order is impugned at Annexure -C to the petition. The suit in question has been instituted by the respondent herein to protect her rights. Similarly the petitioner herein has also filed a petition in M.C. No. 2747/2007. In the said undisputed facts, the petitioner herein filed an application under Section 151 of CPC in O.S. No. 200/2009, seeking leave of the Family Court to sell the property which had been indicated in the said application. The Family Court on considering the rival contentions has dismissed the application by its order dated 19.10.2010. The petitioner herein who is the defendant in the suit is assailing the said order.

(2.) LEARNED counsel for the petitioner while assailing the said order would contend that the Family Court was not justified in rejecting the contention of the petitioner that the right of the respondent herein for interim maintenance could be protected since the petitioner had offered to produce a bank guarantee for a period of five years. When the petitioner had sought leave to sell the property and more particularly contending that the property is a joint family property along with his brothers, the Family Court should have considered the request is the contention. In that view, the learned counsel would contend that the Family Court was not justified in rejecting the application. It is contended that this Court by setting aside the said order grant leave to the petitioner to sell the property after furnishing bank guarantee so that the interest of all the parties would be protected.

(3.) IN the light of the rival contentions, I have perused the petition papers including the order impugned in the instant petition. The Family Court while considering the request of the petitioner herein has taken note of the fact that the petitioner though had contended that the property was a joint family property had not produced any materials in that regard. It is also indicated that the brothers of the petitioner have not instituted any proceedings. In that regard, the Family Court no doubt has taken the existing facts into consideration while arriving at the conclusion. In that regard, I am of the further opinion that even assuming for a moment that the brothers of the petitioner had certain rights in respect of the property, they would exercise such right. But insofar as the petitioner is concerned, to the extent to which the petitioner would be entitled, if the petitioner is permitted to sell the property in the guise that it belongs to the joint family property the right of the respondent in such event would be prejudiced inasmuch as the right in the proceedings would not remain limited only to the interim maintenance to contend that the bank guarantee would suffice. The property should be available for all possible considerations that could be made by the Family Court while disposing of the suit as well as the petition seeking divorce. Hence, to the said extent, I am of the opinion that the Family Court was justified in rejecting the application. However taking into consideration that the M.C. No. 2747/2007 has been pending from the year 2007 and the original suit is pending from 2009, it would be appropriate for the parties to seek early disposal of the case before the Family Court and on such request being made, the Family Court would consider their request, fix a schedule for disposal of the matter and dispose it of in accordance with law within the time to be regulated by the Family Court itself. With the above observation, the petition stands disposed of.