B. RAMAIAH Vs. S. MUNITHAYAPPA

JUDGEMENT

(1.) Heard the learned counsel for the appellants.

(2.) Learned counsel for the appellants would submit that the Trial Court while allowing the application-I.A.No.2 filed by the plaintiffs under Order 39, Rule 1 and 2 read with Sec. 151 of C.P.C. imposed the condition directing the plaintiffs to give undertaking to compensate for injury or loss that would cause defendant No.2 in case, the plaintiffs fail to get the relief of partition and declaration as prayed in the suit. Learned counsel for the appellants would contend that imposition of said condition would cause prejudice to the right of the plaintiffs and hence, the said condition has to be modified. Learned counsel for the appellants not disputes the other observations made by the Trial Court that the order will not bind on the defendant No.18 with whom the defendant No.2 has already obtained loan by creating mortgage.

(3.) Having considered the grounds urged, defendant No.2 has already obtained loan from defendant No.18 by mortgaging the property and suit is filed for partition and separate possession by the plaintiffs and the condition imposed by the Trial Court is that, if the plaintiffs are unsuccessful in getting the relief of partition and declaration, they have to compensate for injury or loss that would cause to defendant No.2. The fact that defendant No.2 had availed loan from defendant No.18 is taken note by the Trial Court. The Trial Court has also taken note of the nature of the suit filed by the plaintiffs and relief is granted restraining the defendant No.2 from alienating the suit schedule property in favour of third parties, pending disposal of the suit.