HILARY WALTER MENEZES Vs. ALICE MENEZES

JUDGEMENT

(1.) The plaintiff filed the present writ petition against the Order dated 01.08.2015 passed on I.A. No.1/2015 in O.S. No.42/2015, rejecting the application for staying the execution and operation of the Judgment and Decree dated 23.04.2011 made in O.S. No.67/2009 on file of the Addl. Senior Civil Judge, Chikkamagaluru.

(2.) Brief facts which led to the present writ petition are as follows:

(3.) According to the present plaintiff, as per Section 33 of the Indian Succession Act, his wife would have got 1/3rd share and the rest would go to his six children in equal shares i.e., each child would be getting 1/9th share and therefore, the decree passed for 1/7th share each is not correct. Now the plaintiff in O.S. No.67/2009 has initiated Final Decree Proceedings in F.D.P. No.10/2011 and the same is pending before the 2nd Addl. Senior Civil Judge, Chikmagalur. The entire procedure followed is manifestly illegal and decree need not have been passed without the consent of all the parties in O.S. No.67/2009. Only a Judgment might have been delivered if all the parties did not appear pursuant to summons issued by the Court. It was submitted that there was no due service of summons in O.S. No.67/2009 on the present plaintiff who was defendant No.3 therein and therefore the decree made on 20.04.2011 is illegal, against law and not binding on the present plaintiff. Therefore he filed the suit O.S. No.42/2015 seeking for a declaration that he is the full and absolute owner of schedule properties involved in Lovely Kan Estate described in the schedule to the plaint and for permanent injunction against the defendants and other reliefs.