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CASE NO.: Appeal (civil)  5707 of 2002

PETITIONER: SUBRAY THIMMANNA HEGDE & ORS

RESPONDENT: NAGARAJ THIMMANNA HEGDE & ORS

DATE OF JUDGMENT: 10/04/2008

BENCH: H.K. SEMA & MARKANDEY KATJU

JUDGMENT: JUDGMENT O R D E R

CIVIL APPEAL NO.5707 OF 2002

       Heard the parties.          This appeal is filed by the defendants against the judgment passed by the High  Court in Second Appeal. The plaintiffs’ suit was dismissed by the trial court.  In  appeal the First Appellate Court confirmed the decree of the trial court.  Aggrieved  thereby, the plaintiffs filed Second Appeal before the High Court.          The High Court framed a substantial question of law as under : 1.      It is open to the appellants to challenge the sale on the following  grounds : a)The property was subject to mortgage and there was  contravention of the sections 35 and 85 of the Karnataka Co- operative Societies Act, 1959. b)The sale was in breach of Order 21 Rule 64 CPC on the ground  that the property sold was worth much more than the amount  sought to be recovered. c)Status as debtor of the father of the appellants who suffered  decree for money? 2.      Whether the decree made by the lower appellate court is vitiated  for its failure to consider the points involved in question No.1?         At the time of hearing of the Second Appeal the High Court has also framed  the additional substantial question of law reads : "12.    The question of law was framed as mentioned  supra. At the time of hearing, one more question was framed  and the counsel was directed to address arguments on the basis  of that question as well. The question is : "Once a property is found to be ancestral property whether  that the property of the minors who get the right by birth  could be brought to sale ?"

       It is submitted that the property is ancestral property and the father was  acting as Manager and Karta of the family. If that is the case the question of  framing the additional substantial question of law would not arise.  Similarly, the  substantial question of law as framed by the High Court, a),b) and c), referred to  above, in our view, does not constitute the substantial question of law as  contemplated under Section 100 CPC.  We, therefore, set aside the order of the  High Court and remand the case to the High Court to frame fresh substantial  question of law strictly compliance of Section 100 CPC, if any, and decide the  appeal afresh.  The order of the High Court is accordingly set aside.           The appeal is allowed. No costs. Since, the matter is pending for a quite long  time, the High Court is requested to dispose of the appeal within six months.