Shriram Properties vs Suvilas Properties - Civil Procedure

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• Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc -... Upgrade to Premium [Cites 16, Cited by 0 ] ### Karnataka High Court

M/S Shriram Properties Limited vs Suvilas Properties Private Limited on 25 February, 2026

NC: 2026:KHC:11823
WP No. 2482 of 2026

HC-KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF FEBRUARY, 2026

                     BEFORE

THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO. 2482 OF 2026 (GM- CPC)
BETWEEN:

M/S. SHRIRAM PROPERTIES LIMITED,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
LAKSHMI NEELA RITE CHOICE CHAMBER,
1ST FLOOR, NO. 9, BAZULLAH ROAD,
T. NAGAR, CHENNAI - 600 017.

HAVING ITS CORPORATE OFFICE AT
NO. 31, 2ND MAIN ROAD,
T CHOWDAIAH ROAD, SADASHIVANAGAR,
BENGALURU - 560 080
REPRESENTED BY ITS AUTHORISED
REPRESENTATIVE MRS. R SARANYA DEVI
ASSISTANT GENERAL MANAGER - LEGAL.
...PETITIONER
(BY SRI. ARUNA SHYAM, SR. COUNSEL A/W
SRI. J.P. DARSHAN, ADVOCATE)

AND:
1. SUVILAS PROPERTIES PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT
NO. 52, DONNABAS TOWER,
1ST FLOOR, RAILWAY PARALLEL ROAD,

                       - 1-
                                     NC: 2026:KHC:11823
                                   WP No. 2482 of 2026

HC-KAR

 NEXT TO BETHESDA SCHOOL,
 KUMARA PARK WEST,
 BENGALURU - 560 020
 REP. BY ITS MANAGING DIRECTOR
 SUNIL CHOWDARY.

1. SUNIL CHOWDARY,
   AGED ABOUT 53 YEARS,
   S/O. MUNIVEERAPPA,
   THE MANAGING DIRECTOR OF
   M/S. SUVILAS PROPERTIES PVT. LTD.,
   HAVING OFFICE AT NO. 52, DONNABAS TOWER,
   1ST FLOOR, RAILWAY PARALLEL ROAD,
   NEXT TO BETHESDA SCHOOL,
   KUMARA PARK WEST,
   BENGALURU - 560 020
   ...RESPONDENTS
   (BY SRI. S.D.N. PRASAD, ADVOCATE FOR
   SRI. UMESH M.N, ADVOCATE)

   THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF
   THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
   IMPUGNED ORDER DATED 19.01.2026 PASSED ON 1.A. NO. 1
   BY THE XXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
   (CCH-14), BENGALURU, IN O.S. NO. 404/2026 PRODUCED AS
   ANNEXURE A, INSOFAR AS NOT GRANTING AN AD-INTERIM
   EX-PARTE ORDER OF TEMPORARY INJUNCTION AS SOUGHT IN
   I.A. NO. 1, IN THE INTEREST OF JUSTICE AND EQUITY AND
   ETC.,

   THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
   ORDER WAS MADE THEREIN AS UNDER:
   CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

                     - 2-
                                         NC: 2026:KHC:11823
                                      WP No. 2482 of 2026
   

HC-KAR

                   ORAL ORDER 1.   The present petition seeks to challenge an order

dated 19.01.2026 passed in O.S.No.404/2026 on I.A.No.1

passed by the XXXI Additional City Civil and Sessions

Judge (CCH-14), Bengaluru (hereinafter referred as

'Impugned Order'). By the Impugned Order the Learned

Trial Court had declined the grant of an ex-parte injunction

based on an application under Order XXXIX Rule 1 and Rule 2 of Code of Civil Procedure, 1908 (hereinafter

referred to as " the CPC ") filed by the petitioner/plaintiff.

1. This Court had by its order dated 28.01.2026 had

while issuing emergent notice in this matter, had directed

an ex-parte stay of the proceedings before the learned

Trial Court.

1. At the outset learned counsel for the respondents

submits that the order is an appealable order in terms of

the provisions of Order XLIII Rule 1 and 2 of the CPC and

thus this petition is not maintainable. The learned counsel

• 3- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

further seeks to rely upon two judgments of this Court in [Sri. Kishan R. Shetty Vs. Gemini Shares and Stocks

Pvt.](https://indiankanoon.org/doc/199992286/), [Ltd.,1 and another and Raju B.V. Vs. Gemini

Shares and Stocks Pvt., Ltd.](https://indiankanoon.org/doc/18489704/), and another2.

1. Learned Senior Counsel for the petitioner contends

that the view has been taken by the co-ordinate benches

that Article 227 of the Constitution of India (hereinafter

referred as COI) is maintainable against an order under

Order XXXIX Rules 1 and 2 of the CPC. He further submits

that in any event the application under Order XXXIX Rule

1 and Rule 2 is pending before the learned Trial Court and

the Trial Court may be directed to expedite the disposal of

such application and until that period the interim order be

remain in place.

1. Learned Senior Counsel further submits that a

petition under Article 227 of the Constitution of India is

maintainable when the order passed under Order XXXIX 1 W.P.No.13888/2022 dated 22.01.2026 : NC : 2026 :KHC :3940 2 W.P.No.13889/2022 dated 22.01.2026 : NC : 2026 :KHC :3942

• 4- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

Rule 1 and Rule 2 CPC is an ex-parte order and in other

circumstances an appeal may be filed.

1. At the outset, it is apposite to set out provisions of

Order XLIII Rule 1(r) of the CPC which is set out below:

"Order XLIII Rule 1. Appeal from orders--An appeal
shall lie from the following orders under the
provisions of section 104, namely
xxxx
xxxx

(r) an order under rule 1, rule 2, [rule 2A],
rule 4 or rule 10 of Order XXXIX."
[Emphasis Supplied]

6.1 A plain reading of these provisions shows that any

order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order XXXIX of the CPC is amenable to challenge by filing

of an appeal.

1. The record reflects that the Impugned Order dated

19.01.2026 was passed in an application which was filed

by the petitioner / plaintiff.

1. The issue whether such an order is appealable is no

longer res integra. The Supreme Court in the case of A.

• 5- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

Venkatasubbaih Naidu Vs. S. Chellappan and others3

has held that the power to grant an ex-parte injunction is

derived from Order XXXIX Rule 1 of the CPC, since Order

XLIII Rule 1(r) of the CPC makes an order under this rule

appealable, the choice of remedy which lies with the

parties is that they can either move the Trial Court to

vacate the order under Order XXXIX Rule 4 or file an

appeal under Order XLIII Rule 1(r) of the CPC. The Court

further held that the statute does not distinguish between

ex-parte and final orders in exercise of the provisions

under Order XXXIX Rules 1 and 2 of the CPC and thus the

disposing of an application under Order XXXIX of the CPC would be amenable to such challenge. The relevant extract

of this judgment is set out below:

"6. The first respondent, on behalf of himself and
Respondents 2 to 5, filed a revision petition invoking Article 227 of the Constitution before the High Court
of Madras alleging that they purchased the property
from the owners thereof as per different sale
documents executed on 15-3-1996, and they were
in possession and enjoyment of the property. They
further alleged that one Ranganathan, MLA and one
Hithayatullah together expressed a wish to purchase the 3 (2000) 7 SCC 695

• 6- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

property from the respondents, but it was not agreed to
and then those two persons exerted threat and pressure
on them to capitulate to their demand. As they did not
yield to such threats a suit was filed in 1998 by some
parties who are now supporting the present plaintiff. The
respondents further alleged that the said suit was filed at
the instance and instigation of those two named persons.
When they failed to get any relief there from another suit
was caused to be filed through one M. Devasinghamani on
the strength of some concocted documents. As no relief
was obtained in that suit also the present suit, which is
the third one in the series, has been filed at the behest of
the above-named persons, according to the respondents.

1. Learned Single Judge of the High Court of Madras who disposed of the revision made the observation that the trial court ought not have granted an order of injunction at the first stage itself which could operate beyond thirty days as the court had then no occasion to know of what the affected party has to say about it. Such a course is impermissible under Order 39 Rule 3-A of the Code, according to the learned Single Judge. He, therefore, set aside the injunction order "for the clear transgression of the provisions of law" and noted that this is the third suit filed in reference to the suit property and hence deprecated the grant of ex parte injunction without notice. Though learned Single Judge further declined to go into the other allegations, he has chosen to make the following observations also:

"However, prima facie, I am satisfied that these
materials are relevant for consideration before
granting ad interim injunction. As per the plaint and
affidavit averments I admit that the first respondent
is occupying a vacant portion of 1670 sq ft and
running paper business and charcoal. But there is no
document to show that the first respondent is
actually in possession and running such a business
except the lease deed. Hence the ex parte order is
unsustainable. For all these reasons, I am of the
view that the order passed by the learned Judge is
liable to be set aside and it is accordingly set aside."
- 7-
NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

1. After holding thus, learned Single Judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously."

[Emphasis Supplied]

8.1. A contention as is being raised by the petitioner in this

case, was raised by one party in the Venkatasubbaiah's

case. It was contended that the party aggrieved could

have either filed an application for modification before the

Trial Court or file an appeal before the Appellate Court. It

was contended that a petition under Article 227 of the

Constitution of India could not be entertained. The

Supreme Court examined the provisions of Section 104 and Order 43 as well as Order 39 of the CPC and has held

it cannot be contended that ex-parte orders are not

amenable under Order 39 of the CPC. It was held that ex-

parte orders like the remaining orders under [Order 39 of

the CPC](https://indiankanoon.org/doc/161831507/), are also amenable to appeals under Order XLIII

Rule 1(r) of the CPC. It was further held that the party

aggrieved must file an application before the Appellate

Court or the same Court as follows:

• 8- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR
• Shri Sivasubramaniam, learned Senior Counsel contended that the High Court should not have entertained a petition under Article 227 of the Constitution when the respondent had two remedies statutorily available to him. First is that the respondent could have approached the trial court for vacating, if not for any modification, of the interim ex parte order passed. Second is that an appeal could have been preferred by him against the said order. It is open to the respondent to opt either of the two remedies, contended the Senior Counsel.

1. Section 104 of the Code says that:

"104. (1) An appeal shall lie from the following
orders, and save as otherwise expressly provided in
the body of this Code or by any law for the time
being in force, from no other orders:

---

(i) any order made under rules from which an appeal
is expressly allowed by rules:"
11. Order 43 Rule 1 says that:

"1. An appeal shall lie from the following orders
under the provisions of Section 104, namely--

---

(r) an order under Rule 1, Rule 2, Rule 2-A,
Rule 4 or Rule 10 of Order XXXIX;"
12. Order 39 Rule 1 says thus:

"1. Where in any suit it is proved by affidavit or
otherwise--

(a) that any property in dispute in a suit is in danger
of being wasted, damaged or alienated by any party
to the suit, or wrongfully sold in execution of a
decree, or

(b) that the defendant threatens, or intends to
remove or dispose of his property with a view to
defrauding his creditors,

• 9- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

(c) that the defendant threatens to dispossess the
plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit, the
court may by order grant a temporary injunction to
restrain such act, or make such other order for the
purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of
the property or disposition of the plaintiff, or
otherwise causing injury to the plaintiff in relation to
any property in dispute in the suit as the court thinks
fit, until the disposal of the suit or until further
orders."

1. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said Rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief."

[Emphasis Supplied]

1. A similar view has been taken by the Supreme Court

in the case of [Virudhunagar Hindu Nadargal Dharma

Paribalana Sabi and others Vs. Tuticorin Educational

Society](https://indiankanoon.org/doc/81263073/) and others4 and [Mohamed Ali Vs. V.Jaya and

Ors.5](https://indiankanoon.org/doc/23426324/) wherein it has been held that, where a petition 4 (2019) 9 SCC 538 5 (2022) 10 SCC 477

• 10- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

under Article 227 of the Constitution of India was filed

challenging such an order held that the petition is not

maintainable. The relevant extract of [Virudhunagar

Hindu Nadargal Dharma Paribalana Sabi](https://indiankanoon.org/doc/81263073/) 's Case is

below:

"11. Secondly, the High Court ought to have seen that
when a remedy of appeal under Section 104(1)(i) read
with Order 43, Rule 1(r) of the Code of Civil Procedure,
1908, was directly available, Respondents 1 and 2 ought
to have taken recourse to the same. It is true that the
availability of a remedy of appeal may not always be
a bar for the exercise of supervisory jurisdiction of
the High Court. In A. Venkatasubbiah Naidu v. S.
Chellappan [A. Venkatasubbiah Naidu v. S.
Chellappan,6], this Court held that "though no
hurdle can be put against the exercise of the
constitutional powers of the High Court, it is a well-
recognised principle which gained judicial
recognition that the High Court should direct the
party to avail himself of such remedies before he
resorts to a constitutional remedy".
12. But courts should always bear in mind a
distinction between (i) cases where such alternative
remedy is available before civil courts in terms of
the provisions of Code of Civil Procedure, and (ii)
cases where such alternative remedy is available
under special enactments and/or statutory rules
and the fora provided therein happen to be quasi-
judicial authorities and tribunals. In respect of
cases falling under the first category, which may
involve suits and other proceedings before civil
courts, the availability of an appellate remedy in
terms of the provisions of CPC, may have to be
construed as a near total bar. Otherwise, there is a
danger that someone may challenge in a revision

6(2000) 7 SCC 695

• 11-
  NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

  under Article 227, even a decree passed in a suit, on
  the same grounds on which Respondents 1 and 2
  invoked the jurisdiction of the High Court. This is
  why, a 3-member Bench of this Court, while
  overruling the decision in [Surya Dev Rai v. Ram
  Chander Rai Surya Dev Rai v. Ram Chander Rai7,
  pointed out in [Radhey Shyam v. Chhabi Nath
  Radhey Shyam v. Chhabi Nath8, that "orders of civil
  court stand on different footing from the orders of
  authorities or tribunals or courts other than
  judicial/civil courts".

1. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."

[Emphasis Supplied]

1. Learned Senior Counsel for the petitioner has

contended that the co-ordinate benches of this Court have

taken a different view in the matter and have held that

such ex-parte orders passed in an application under Order

XXXIX Rules 1 and 2 of the CPC are amenable to [Article

227](https://indiankanoon.org/doc/1331149/) of the Constitution of India. This issue was already 7 (2003) 6 SCC 675 8 (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67

• 12- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

examined by this Court in a matter captioned Bharath

Kumar v. Munivenkatappa9. This Court examined the

judgments of the Coordinate Bench and found that the

Coordinate Bench relied on a judgment of a Division Bench

in M/s Parijatha & Another Vs. Kamalaksha Nayak and others9 case to reach this conclusion. However, the

judgment in Parajitha case was passed in the year 1981

and thereafter this issue has been settled by the Supreme

Court in Venkata Subbaiah's case. The relevant extract

of the judgment in Bharat Kumar's case, is set out

below:

"4. On a question of maintainability of this petition,
learned counsel for the petitioner has made the
following submissions;

(i) That the Division Bench of this Court has held that
an appeal is not maintainable, however under Order
XLIII Rule 1 of the CPC and thus this petition under Article 227 of the Constitution of India is maintainable;
and

(ii) Learned counsel for the petitioner has also relied
upon two judgments of Co-ordinate Benches stating
that the Division Bench judgment was followed in these
two judgments and thus the petition under Article 227 of the Constitution of India filed by the petitioner is 9 W.P.No.21137/2021 (NC: 2026: KHC:802)

• 13-
  NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

  maintainable. Reliance is placed on the following
  judgments:

(i) M/s Parijatha & Another v. Kamalaksha Nayak and
others

(ii) Procter & Gamble Home Products Private Limited
v. Marico Limited and others10

(iii) R Ravindranath Manvi v. K.B. Ramesh11

1. The Division Bench of this Court has in its judgment of M/s Parijatha case while deciding the issue of preliminary objection as to maintainability of an appeal from an ex parte injunction under Rule 1 or Rule 2 of Order XXXIX of CPC has held that the appeal would not be maintainable against an exparte order and that the remedy of the litigant would be to file an application under Rule 4 of Order XXXIX of the CPC in the first instance. It is apposite to extract the relevant part of the Division Bench order which is set out below;

"15. For the forgoing reasons, we hold that
order 43 Rule 1(r) of the Code does not
allow the filing of an appeal from an
exparte interim order of temporary
injunction granted under Rule 1 or 2 of
order 39, but the remedy of the aggrieved
person is to move the trial court under
Rule 4 of order 39 of the code in the first
instance. We further hold that even a stranger
to the suit or proceeding can maintain such an
application. We hereby over-rule the decisions
of single judges taking a view in favour of the
permissibility of an appeal against an interim
exparte order of temporary injunction, to wit,
Keshavchand Gopalchand Gujjar v.
Ningappa Pandappa Kolakar [1969 (2)
Mys. Law Journal 525.] , Bhima Ningappa
Khot v. Ratnabai [ C.R.P. No. 3056 of
1978/6 d. d. 6-2-1979.] , and Mahila
Samaja v. Smt. Varija Aithal [ C.R.P.
2705/78 d. d. 5-2-1980.]."
10 MFA No.8990/2017 (CPC) order dated 30.11.2017
11 MFA NO.3837/2018(CPC) order dated 21.12.2018

• 14-
  NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

                                         [Emphasis Supplied]
  

1.  A Co-ordinate bench of this Court while relying
   on the [Parijatha](https://indiankanoon.org/doc/247762/) case have also given similarly
   findings in [Procter & Gamble](https://indiankanoon.org/doc/55601108/) case and in the matter
   captioned R Ravindranath Manvi Vs. KB Ramesh.
   

2.  The issue whether such an order is appealable
   is no longer res integra. The Supreme Court in the case
   of [A. Venkatasubbaih Naidu Vs. S. Chellappan](https://indiankanoon.org/doc/442524/) and
   others12 has held that the power to grant an ex-parte
   injunction is derived from [Order XXXIX Rule 1 of the
   Code of Civil Procedure](https://indiankanoon.org/doc/161831507/), since Order XLIII Rule 1(r) [of
   the CPC](https://indiankanoon.org/doc/161831507/) makes an order under this rule appealable, the
   choice of remedy which lies with the parties is that they
   can either move the Trial Court to vacate the order
   under Order XXXIX Rule 4 or file an appeal under Order
   XLIII Rule 1(r) [of the CPC](https://indiankanoon.org/doc/161831507/). The [Court further held](https://indiankanoon.org/doc/442524/) that
   the statute does not distinguish between ex-parte and
   final orders in exercise of the provisions under Order
   XXXIX Rules 1 and 2 [of the CPC](https://indiankanoon.org/doc/161831507/) and thus the disposing
   of an application under [Order XXXIX of the CPC](https://indiankanoon.org/doc/161831507/) would
   be amenable to such challenge. The relevant extract is
   below:
   

"6. The first respondent, on behalf of himself
and Respondents 2 to 5, filed a revision
petition invoking Article 227 of the
Constitution before the High Court of
Madras alleging that they purchased the
property from the owners thereof as per
different sale documents executed on
15-3-1996, and they were in possession
and enjoyment of the property. They
further alleged that one Ranganathan, MLA
and one Hithayatullah together expressed a
wish to purchase the property from the
respondents, but it was not agreed to and
then those two persons exerted threat and
pressure on them to capitulate to their
demand. As they did not yield to such threats
a suit was filed in 1998 by some parties who 12 (2000) 7 SCC 695

• 15- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

     are now supporting the present plaintiff. The
     respondents further alleged that the said suit
     was filed at the instance and instigation of
     those two named persons. When they failed
     to get any relief therefrom another suit was
     caused to be filed through one M.
     Devasinghamani on the strength of some
     concocted documents. As no relief was
     obtained in that suit also the present suit,
     which is the third one in the series, has been
     filed at the behest of the above-named
     persons, according to the respondents.

1. Learned Single Judge of the High Court of Madras who disposed of the revision made the observation that the trial court ought not have granted an order of injunction at the first stage itself which could operate beyond thirty days as the court had then no occasion to know of what the affected party has to say about it. Such a course is impermissible under Order 39 Rule 3-A of the Code, according to the learned Single Judge. He, therefore, set aside the injunction order "for the clear transgression of the provisions of law" and noted that this is the third suit filed in reference to the suit property and hence deprecated the grant of ex parte injunction without notice. Though learned Single Judge further declined to go into the other allegations, he has chosen to make the following observations also:

"However, prima facie, I am satisfied that
these materials are relevant for consideration
before granting ad interim injunction. As per
the plaint and affidavit averments I admit
that the first respondent is occupying a
vacant portion of 1670 sq ft and running
paper business and charcoal. But there is no
document to show that the first respondent is
actually in possession and running such a
business except the lease deed. Hence the ex

• 16- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

parte order is unsustainable. For all these
reasons, I am of the view that the order
passed by the learned Judge is liable to be
set aside and it is accordingly set aside."
8. After holding thus, learned Single Judge
directed the trial court to take up the
interlocutory application for injunction and
pass orders on merits and in accordance with
law expeditiously.

1. Shri Sivasubramaniam, learned Senior
   Counsel contended that the High Court
   should not have entertained a petition
   under Article 227 of the Constitution
   when the respondent had two remedies
   statutorily available to him. First is that
   the respondent could have approached
   the trial court for vacating, if not for any
   modification, of the interim ex parte
   order passed. Second is that an appeal
   could have been preferred by him
   against the said order. It is open to the
   respondent to opt either of the two
   remedies, contended the Senior Counsel.

2. Section 104 of the Code says that:

"104. (1) An appeal shall lie from the
following orders, and save as otherwise
expressly provided in the body of this Code
or by any law for the time being in force,
from no other orders:

---

(i) any order made under rules from which an
appeal is expressly allowed by rules:"
11. Order 43 Rule 1 says that:

"1. An appeal shall lie from the following
orders under the provisions of Section 104,
namely--

---

• 17- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

(r) an order under Rule 1, Rule 2, Rule 2-A,
Rule 4 or Rule 10 of Order XXXIX;"
12. Order 39 Rule 1 says thus:

"1. Where in any suit it is proved by affidavit
or otherwise--

(a) that any property in dispute in a suit is in
danger of being wasted, damaged or
alienated by any party to the suit, or
wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends
to remove or dispose of his property with a
view to defrauding his creditors,

(c) that the defendant threatens to
dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any
property in dispute in the suit, the court may
by order grant a temporary injunction to
restrain such act, or make such other order
for the purpose of staying and preventing the
wasting, damaging, alienation, sale, removal
or disposition of the property or disposition of
the plaintiff, or otherwise causing injury to
the plaintiff in relation to any property in
dispute in the suit as the court thinks fit, until
the disposal of the suit or until further
orders."
13. It cannot be contended that the
power to pass interim ex parte orders of
injunction does not emanate from the
said Rule. In fact, the said Rule is the
repository of the power to grant orders
of temporary injunction with or without
notice, interim or temporary, or till
further orders or till the disposal of the
suit. Hence, any order passed in exercise
of the aforesaid powers in Rule 1 would
be appealable as indicated in Order 43
Rule 1 of the Code. The choice is for the
party affected by the order either to move
the appellate court or to approach the same

• 18-
  NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

     court which passed the ex parte order for any
     relief."
  

[Emphasis Supplied]

1. In addition, it is clear from a reading of the

judgments of the Coordinate Bench that the recent

judgments of the Supreme Court were not brought to the

notice of the Coordinate Bench(s). Thus, the law as [laid

down in](https://indiankanoon.org/doc/442524/) the Parajitha's case is no longer good law. Given

the law as settled by the Supreme Court, this Court is

unable to take any other view.

1. Concededly, the petitioner instead of availing the

statutory remedy available to them, have chosen to file a

petition under Article 227 of the Constitution of India.

Given the settled position of law as is reproduced above,

this cannot be sustained. No doubt the powers of

superintendence under Article 227 of the Constitution of

India cannot be curtailed, however where there is a

statutory remedy available to the petitioner, the remedy

ought to be exercised.

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1. The learned counsel for the petitioner contends that

he would be filing his reply to this application within one

week from today. Learned counsel for the petitioner has

further contended that the ex-parte interim protection

granted to the petitioner by this Court on 28.01.2026 be

extended till the next date of hearing before the Trial

Court which is 13.03.2026.

1. As stated above, in the present case, this Court had

granted ex-parte interim protection restraining alienation

of the suit schedule property pending consideration of the

matter. The Supreme Court in Mangal Rajendra Kamthe

v. Tahsildar, Purandhar13 case has clarified the scope of

granting interim protection when the High Court declines

to entertain a writ petition on the ground of availability of

an alternative remedy. The Supreme Court held that once

the High Court declines to entertain a writ petition on the

ground of the availability of alternative efficacious remedy,

the proceedings must terminate at that stage and the

13 2026 SCC OnLine SC 297

• 20- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

Court cannot grant interim relief merely to enable the

petitioner to approach the alternative forum, as interim

relief can only be granted in aid of the final relief sought in

the petition. It is apposite to extract the relevant extract

of the Mangal Rajendra Kamthe's case below:

"5. Orders of similar nature have engaged our
attention where the high courts, while declining to
entertain writ petitions under Article 226 of the
Constitution on the ground of availability of an
efficacious alternative remedy to the writ
petitioner(s) concerned have, nonetheless, granted
relief [either by staying operation of the order(s)
under challenge or directing maintenance of status
quo] to be operative for a limited period to enable
such petitioner(s) to seek appropriate relief from
the alternative forum.

1. It is settled law that once the high court, upon application of mind, declines to entertain a writ petition in the exercise of its discretionary jurisdiction on the ground that an efficacious alternative remedy for grant of relief is available but such remedy has not been pursued by the petitioner, the proceedings do not survive and must draw to an end then and there; however, in such a circumstance when no final relief can effectively be granted on the petition, it is impermissible to pass an order in the nature of an interim relief [either by granting stay of operation of the order under challenge or by directing status quo to be maintained] till such time the aggrieved petitioner approaches the alternative forum. Such an order, as and when passed, would be in the teeth of a Constitution Bench decision of this Court in State of Orissa v. Madan Gopal Rungta14." [Emphasis Supplied] 14 1951 SCC 1024

• 21- NC: 2026:KHC:11823 WP No. 2482 of 2026 HC-KAR

1. In view thereof the petition is disposed of granting

liberty to the petitioner to take appropriate steps in

accordance with law, if he so chooses. The learned Trial

Court shall take up the application under Order XXXIX

Rules 1 and 2 of the CPC on the next date of hearing.

1. The respondents are also at liberty to file an

application for advancing the date of hearing before the

learned Trial Court, if they so desire.

1. It is clarified that this Court has not examined the

matter on merits. The rights and contentions of both

parties are kept open to be agitated before the Trial Court.

1. All pending applications stand closed.

Digitally signed by TARA VITASTA GANJU Location: HIGH COURT Sd/-

OF KARNTAKA (TARA VITASTA GANJU)
JUDGE

BVK / KS
List No.: 3 Sl No.: 18

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