The High Court
Case Details
- 1 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO.5741 OF 2024 (CPC) BETWEEN: 1. SRI R S BHADRIPRASAD S/O LATE R N SHANKARAMURTHY AGED ABOUT 51 YEARS 2. SMT. R B PRAMODA PRASAD W/O R.S. BHADRI PRASAD AGED ABOUT 48 YEARS BOTH ARE R/O No.114 ‘B’ NARASIMHA NILAYA, HOSALINE ROAD, HASSAN - 573201 (BY SRI MOHAN P S, ADVOCATE) AND: SRI UMESH H K S/O H B KRISHNAPPA AGED ABOUT 54 YEARS R/O MAHALAKSHMI NILAYA, 2ND MAIN ROAD, 4TH CROSS, HEMAVATHI NAGARA HASSAN - 573201 Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA …APPELLANTS
Legal Reasoning
(BY SRI VARUN R R, ADVOCATE FOR SRI APPANNAGOWDA K) …RESPONDENT - 2 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 THIS MFA IS FILED U/O 43 RULE 1(c) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 03.08.2024 PASSED IN MISC.NO.64/2021 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, HASSAN AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel appearing for the respective parties. 2. The factual matrix of the case is that the respondent/plaintiff entered into the sale agreement with the appellant/defendant for sale consideration of Rs.37,50,000/- and as on the date of sale agreement on 04.05.2018, made the payment of Rs.35,00,000/- through RTGS and thereafter when the appellant herein did not come forward to execute the sale deed, filed the suit for specific performance and in the said suit, notice was ordered and same was served through post as well as Court and endorsement was received by the post office as - 3 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 ‘not claimed’ and endorsement was received by the bailiff as ‘refused to receive the same’ and hence, he was placed exparte and thereafter, judgment and decree was passed on 27.09.2021 and immediately, Miscellaneous Petition was filed under Order IX Rule 13 of CPC seeking for setting aside the judgment and decree dated 27.09.2021 and notice was also served on the respondent/plaintiff on 17.11.2021 and thereafter, respondent/plaintiff also filed an Execution Petition to obtain the regular sale deed and in the execution petition also notice was issued to the appellants/defendants and same was returned with an endorsement ‘not claimed’. Hence, an application was filed for appointment of Court Commissioner and sale deed also obtained from the Court through Court Commissioner. 3. The main contention of the learned counsel for the appellants that the respondent managed to get the endorsement as ‘not claimed’ and ‘refused’ and also in the miscellaneous petition filed under Order IX Rule 13 of CPC, bailiff and postman examined before the Court as the - 4 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 Court witnesses and bailiff says that plaintiff was there along with him while serving the notice but he did not take signature of the plaintiff and postman also says that he heard the noise of children in the house but they did not open the door and hence, he returned the same as ‘door lock’. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that not made out any sufficient cause to set aside the judgment and decree and dismissed the same. Hence, the present appeal is filed before this Court. 4. The main contention of the counsel for the appellants that it was stage managed in the original suit as well as execution petition. The counsel for the respondent brought to notice of this Court when the judgment and decree was passed on 27.09.2021, copy was applied on the very next date that is on 28.09.2021 hence, the appellants pleading is contrary to the certified copy since copy was applied on the very next date of judgment and in the pleading he stated that he came to know about the - 5 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 judgment on 03.10.2021 and also while filing the petition, it is stated that till date copy has not been obtained but record discloses that copy was obtained prior to filing of the execution petition and hence, false petition was filed. The material discloses that in the cross-examination of appellant also he admits that he came to know about the filing of suit in the year 2020 and the said suit was
Decision
disposed of on 27.09.2021 and wife has been examined as PW2 who categorically admits that registered post came in the name of her husband and same was returned. 5. It has to be noted that the appellant counsel filed an application under Order 41 Rule 27 of CPC before this court relying upon two documents of loan transaction between the appellants and respondent and one of the document is dated 04.05.2018 and another document is dated 24.06.2019 and in terms of the first loan agreement, an amount of Rs.15,00,000/- was paid by the respondent to the appellants and in terms of second agreement, an amount of Rs.30,00,000/- was paid and no - 6 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 action was taken in respect of the said loan transaction is concerned for having made the payment and same is shown as cash transaction in both the agreements and these documents are not disputed by the respondent. When such being the case, doubt creates in the mind of the Court with regard to the very transaction is concerned, Apart from that in the original suit, summons was served but endorsement is that ‘refused’ and ‘not claimed’ and in execution petition is also, the endorsement is that ‘not claimed’. Admittedly, notice was served on the petition filed under Order IX Rule 13 of CPC and in ingenious method, the respondent also filed an execution petition having the knowledge about the petition filed under Order IX Rule 13 of CPC and endorsement is that ‘not claimed’ and thereafter, commissioner was appointed and sale deed was obtained and possession is not yet taken in terms of the decree. The counsel for the appellant salso brought to notice of this Court that in the original suit, schedule was not mentioned and in the execution petition, schedule was mentioned and same was got amended in 2023. Having - 7 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 taken note of these facts into consideration, this court is of the opinion that the matter requires to be adjudicated on merits. Hence, it is appropriate to set aside the dismissal of the petition filed under Order IX Rule 13 of CPC having taken note of the answer elicited from the mouth of appellants as well as respondent wherein it is stated the respondent having knowledge and obtained the sale deed subsequent to the filing of miscellaneous petition filed under Order IX Rule 13 of CPC, hence, it is appropriate to allow the appeal and set aside the order dated 03.08.2024. The documents which have been filed before this court under Order 41 Rule 27 of CPC is directed to place the same before the Trial Court for consideration of the matter on merit. Hence, permission is given to the appellant to rely upon these documents before the Trial Court as necessary for adjudication. 6. The counsel for the respondent would contend that these two sale agreements are not in connection with the said sale agreement and the same may be considered - 8 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 during the course of the trial by the Trial Court whether those are connected to the sale agreement or not. Both the parties are given opportunity to substantiate their contention before the Trial Court while considering the matter on merits. 7. Having taken note of conduct of the appellants that they have applied for certified copies on the very next date of the judgment, appeal is allowed on cost of Rs.50,000/- and same is payable by the appellants before the Trial Court and out of that amount of Rs.50,000/-, Rs.40,000/- is payable to the respondent/plaintiff and remaining amount of Rs.10,000/- shall vest with the State. 8. Both the parties are directed to appear before the Trial Court on 10.03.2025 without expecting any notice from the Trial Court and the Trial Court is directed to dispose of the matter within a time bound period of one year. The appellants are directed to file written statement within one month from 10.03.2025 and thereafter the Trial - 9 - NC: 2025:KHC:5517 MFA No. 5741 of 2024 Court consider the matter on merits within a time bound period. 9. In view of the observation made in the order, I.A. filed under Order 41 Rule 27 of CPC is disposed of and permitted to produce the original documents before the Trial Court for adjudication of the matter on merits. Sd/- (H.P.SANDESH) JUDGE SN