V SIDDAMMA Vs. BIDARI SADYOJATHAPPA

JUDGEMENT

(1.) THE appellant herein was the petitioner before the trial Court in Miscellaneous Case No. 154/1984 and the petition filed under Section 144 of CPC by her for restoration of suit schedule properties and also for compensation or damages for illegal occupation by the respondents before the trial Court was allowed in part and against the said order passed by the Trial Court, the respondents preferred R. F. A. No. 586/87 before this Court and subsequent to transfer of the appeal to the District Court and being further transferred to the lower appellate court it was numbered as R. A. No. 76/2000 and the lower appellate Court, after considering the contention urged before it by the respondents, came to the conclusion that the trial Court could not have entertained the petition filed under Section 144 of the CPC as the necessary ingredients were not fulfilled and consequent to the said finding, the appeal preferred by the respondents was allowed and the order passed by the trial Court in Misc. Case No. 154/84 was set aside and the petition filed under Section 144 of cpc also came to be dismissed. Aggrieved by the dismissal of the petition by the Court below, the petitioner before the trial Court has preferred the second appeal.

(2.) I have heard the learned Counsel for the appellant and the learned counsel for the respondents. This Court at the time of admission had framed the following substantial questions of law for consideration:

(3.) LEARNED Counsel for the appellant submitted that the lower appellate Court was in error in upsetting the order passed by the trial court and as the lower appellate Court did not take into consideration the order passed by this Court in R. F. A. Nos. 82/1973 and 92/1973 and when this Court had observed while disposing of the said R. F. As. under common judgment one Basamma had become the absolute owner of the suit properties having got them under registered Will executed in her favour by her husband Siddappa on 5-4-1965, the lower appellate Court could not have set aside the order passed by the trial Court.