Karnataka High Court
Sri V Srinivasa Raju vs M/S Ayathi Projects on 23 February, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
M. F. A. NO.1165 OF 2022 (CPC)
BETWEEN:
SRI V. SRINIVASA RAJU
AGED ABOUT 65 YEARS
S/O LATE SRI VARADARAJU
NO.12, 10TH MAIN ROAD,
RMV EXTENSION,
SADASHIVANAGAR
BENGALURU-560080.
...APPELLANT
(BY SRI. PRAKASH B.N, ADV.,)
AND:
M/S AYATHI PROJECTS
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.784, P4,
"SREESHA", 3RD FLOOR
15TH MAIN ROAD, HBR LAYOUT
BENGALURU-560043 AND
REPRESENTED BY ITS PARTNERS
1. SRI RISHI CARIAPPA
AGED ABOUT 44 YEARS
S/O SRI K.A.NACHAPPA
2. SRI VENKATESHWARA REDDY
AGED ABOUT 54 YEARS
S/O SRI K.RAMANA REDDY
2
3. SRI AVYUKTHA PROJECTS LLP.
A PARTNERSHIP FIRM HAVING
ITS OFFICE AT NO.933
TWENTIETH MAIN,
BANASHANKARI 2ND STAGE
BENGALURU-560070
REPRESENTED BY ITS PARTNER
MR. Y.A.VENKATESH.
...RESPONDENTS
(BY SRI. AMIT MANDGI, SENIOR COUNSEL FOR
SRI M.RAVINDRANATH, ADV. FOR C/R1 TO R3)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(j) OF CPC,
AGAINST THE ORDER DATED 25.01.2022 PASSED ON I.A.NO.5 IN
EX.P.NO.2037/2020 ON THE FILE OF THE LVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, CCH-57 SETTING
ASIDE THE SALE IN I.A.NO.5 FILED UNDER ORDER 21 RULE 90
OF CPC. AND ETC.,
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant aggrieved by the order dated 25.01.2022
passed on I.A.No.5 filed by the appellant under Order 21 Rule 90
of C.P.C., in Ex.No.2037/2020 has filed this appeal.
2. Brief facts leading to filing of this appeal are as under:
The appellant filed a suit in O.S.No.7025/2016 seeking for
the relief of perpetual injunction. The parties to the suit filed a
joint memo and the appellant agreed to pay a sum of
Rs.8,50,00,000/- towards full and final settlement of the claim of
the respondent, failing which, the appellant has agreed to pay
interest at 10% p.a. On the basis of the joint memo, the trial
Court disposed of the suit vide judgment and decree dated
08.02.2020. The appellant has not complied with the terms and
conditions of the compromise decree. The respondent filed
Ex.No.2037/2020 to execute the compromise decree. In the said
execution petition, the petitioner filed an application i.e., I.A.No.4
seeking to set aside the sale auction dated 13.12.2021. The said
application came to be rejected by the trial Court vide order dated
19.01.2022. Thereafter, the appellant has filed one more
application i.e., I.A.No.5 under Order XXI Rule 90 of C.P.C., to set
aside the sale. The trial Court declined to consider the application
on the ground that the application filed by the petitioner i.e.,
I.A.No.4 came to be rejected. Hence, this appeal.
3. Heard the learned counsel for the appellant
Sri.Prakash B.N., and also learned Senior counsel Sri.Amit Mandgi
for Sri.M.Ravindranath for the respondent.
4. Learned counsel for the appellant submits that the
trial Court has committed an error in not considering I.A.No.5 on
the ground that I.A.No.4 came to be dismissed. He further
submits that the appellant aggrieved by the order on I.A.No.4,
filed a writ petition in W.P.No.2727/2022, which is pending for
consideration. He further submits that the impugned order passed
by the trial Court is arbitrary and erroneous. Hence, on these
grounds, he prayed to allow the writ petition.
5. Per contra, learned Senior counsel for the respondent
submits that the prayer made in I.A.No.4 is the same prayer
made in I.A.No.5. Hence, the Executing Court has rightly rejected
I.A.No.4. He further submits that the appellant instead of
depositing the amount as per compromise decree, he is filing
application after application and he is abusing process of law. He
further submits that the trial Court has rightly passed the
impugned order. Hence, on these grounds, he prayed to dismiss
the appeal.
6. Heard and perused the records and considered the
submissions made by the learned counsel for the parties.
7. It is not in dispute that the appellant filed a suit for
bare injunction. In the said suit, the parties have filed a joint
memo. Accordingly, the trial Court accepted the joint memo and
passed the compromise decree. Further, the appellant agreed to
pay a sum of Rs.8,50,00,000/-, within six months. In case, the
appellant fails to pay the amount, then appellant is liable to pay
interest at 10% p.a. Inspite of the compromise decree, the
appellant has not paid the amount as per the compromise decree.
The respondent filed a Execution Case. The Executing Court has
provided an opportunity to the appellant to deposit the amount.
Though the appellant has taken a specific contention in the
objection that the appellant is ready to deposit the amount, the
trial Court has put the property for auction and the same was
confirmed. Therefore, the petitioner has field I.A.No.4 seeking to
set aside the auction sale. The trial Court has put the property in
auction. The property was auctioned. Thereafter, the petitioner
before confirmation of sale filed an application I.A.No.4 to set
aside the auction sale. The trial Court passed the detailed order
considering the contentions of the appellant and rejected the
application vide order dated 19.01.2022. After disposal of the said
application, the petitioner has filed application I.A.No.5 seeking
the same relief. The trial Court has passed the order and
recorded the finding that in view of disposal of I.A.No.4, the
question of considering I.A.No.5 does not arise for consideration.
The relief sought in both the applications is one and the same.
8. The trial Court is justified in recording the finding that
in view of dismissal of I.A.No.4 the question of considering
I.A.No.5 does not arise, I do not find any ground to interfere with
the impugned order. Accordingly, the appeal is dismissed.
Any observation made in this order should not be construed
as recognition of any rights in the parties.
All the contentions of the parties are kept open.
In view of dismissal of the main appeal, I.A.No.1/2022 does
not arise for consideration and disposed of accordingly.
SD/-
JUDGE
ssb
