(BY SRI. P.B. RAJU, ADVOCATE) v. KRISHNA MURTHY

(BY SRI. P.B. RAJU, ADVOCATE) AND:

1. SRI V. KRISHNA MURTHY, AGED ABOUT 59 YEARS, S/O. SRI N.R.VENU GOPAL NAIDU, RESIDING AT NO.121/26, 16TH MAIN, B.S.K. 1ST STAGE, 2ND BLOCK, BANGALORE-560 050. …APPELLANT …RESPONDENT (BY SMT. SHOBHA S. BHAVIKATTI, ADVOCATE FOR C/R) THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED 08.06.2020, PASSED IN MISC. NO.282/2011, ON THE FILE OF THE XI-ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY (CCH-8), DISMISSING THE MISCELLANEOUS PETITION FILED UNDER ORDER 9 RULE 13 R/W SECTION 151 OF CPC AND RESTORE O.S.NO.10218/2005, ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY (CCH-8). THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:41608 MFA No. 345 of 2021 CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the caveator/respondent.

2. The present appeal is filed against the dismissal of Misc. No.282/2011, which was filed under Order 9 Rule 13 of CPC for setting aside the judgment and decree passed by the Trial Court in terms of Ex.P.1. The main reason assigned in the miscellaneous petition is that the petitioner/appellant was admitted to the hospital in the month of August 2010 till the end of 30.08.2010, intermittently twice for dengue fever and also he was suffering from low blood pressure. The Trial Court while taking note of the material on record observed that the suit was disposed of on 14.02.2011 and though the documents of discharge summaries are produced i.e., Exs.P.3 and 4, taken note of that even after discharge from the hospital, the appellant/petitioner did not attend the Court. It is also clear from the material that he had engaged the counsel and also filed the written statement and issues were framed and witnesses were examined during the month of July and thereafter the petitioner did not participate in the proceedings before the Trial - 3 - NC: 2024:KHC:41608 MFA No. 345 of 2021 Court and hence the Trial Court comes to the conclusion that no reasons are made out.

3. The learned counsel for the appellant would contend that when the documents of discharge summaries are produced as Exs.P.3 and 4, the Trial Court ought to have taken note of the same and set aside the judgment and decree and ought to have given an opportunity.

4. Per contra, learned counsel caveator/respondent would contend that already decree is executed and the same is enforced by executing the sale deed in the year 2017 itself and the question of setting aside the decree by allowing the petition filed under Order 9 Rule 13 of CPC does not arise. The Trial Court also considered the evidence available on record and the appellant has not produced the order sheet before the Trial Court and also before this Court explaining the reason for non-appearance and hence there is no merit.

5. In reply to the arguments of the learned counsel for the caveator/respondent, the learned counsel for the appellant submits that the suit schedule property measures 26 guntas, which is situated at K.R. Puram Hobli and loan transaction was Rs.7 lakhs and out of that, an amount of Rs.5 lakhs was paid - 4 - NC: 2024:KHC:41608 MFA No. 345 of 2021 and the same was not a sale transaction. If the judgment and decree is not set aside, he will be put to irreparable loss.

6. Having heard the learned counsel for the appellant and the learned counsel for the caveator/respondent and also considering the grounds urged before this Court and the Trial Court, the Trial Court meticulously evaluated the material available on record and no doubt Exs.P.3 and 4 produced before the Trial Court to show that the appellant was admitted to the hospital in the month of August 2010. The records reveals that the evidence was commenced in the month of July and after commencement of evidence of the plaintiff, the appellant did not participate in the proceedings of the Trial Court and admittedly the judgment and decree was passed on 14.02.2011 after 4½ months of discharge from the hospital. The appellant even not made any application for recalling of the witnesses after discharge from the hospital and filed the miscellaneous petition after the disposal of the suit. It is evident from the records that the decree was enforced by filing the execution petition and sale deed was executed in 2017 itself. When such being the material available on record, the very contention of the learned counsel for the appellant that it was only a loan transaction and not sale transaction cannot be accepted. If really it was a loan - 5 - NC: 2024:KHC:41608 MFA No. 345 of 2021 transaction and not a sale transaction, the appellant ought to have contested the suit and the same has not been done when the suit was pending. After the disposal of the suit on

14.02.2011, the petition was filed in the month of April 2011. Having perused the material on record, I do not find any error committed by the Trial Court in dismissing the petition filed under Order 9 Rule 13 of CPC and a reasoned order has been passed by the Trial Court considering the evidence put forth by the appellant before the Trial Court and hence there is no merit in the appeal to set aside the order passed by the Trial Court. The Trial Court in detail considered the same while dismissing the petition filed under Order 9 Rule 13 of CPC, since the appellant did not make out any ground to set aside the judgment and decree of the Trial Court and the same has been already executed.

7. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. MD List No.: 1 Sl No.: 36 Sd/- (H.P.SANDESH) JUDGE