Sri H Narayana vs M/S Niranjan Developers
2022 Latest Caselaw 4239 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11 T H DAY OF MARCH, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

             MFA NO.906 OF 2022 (CPC)

BETWEEN:

Sri H.Narayana,
S/o Sri Hanumantharayapp a,
Aged about 61 years,
R/at No.8, Rayap pa Building,
5 t h Cross, 2 n d Main,
Govind arajanagara,
Beng aluru-560040.
                                          ...Appellant
(By Sri M.B.Chandrachooda, Advocate)


AND:

1.   M/s. Niranjan Developers,
     Represented by its p artner,
     Sri B.R.Ashrith,
     S/o Late B.R.Rajanna Gowd a,
     Aged 40 years,
     R/at No.167/1, Chikkab eg ur,
     Off. Hosur Road ,
     Beng aluru-560068.

2.   Smt. Akkamma,
     W/o Late Gop alappa,
     Aged 80 years,

3.   Smt. M.Manjula,
     W/o Rajagop al,
     Aged 50 years,
                               :: 2 ::


4.   Smt. Priyanka R,
     W/o Sunil,
     D/o Late Rajagop al G,
     Aged 31 years,

5.   Smt. Pushpa R,
     W/o Anil,
     D/o Late Rajagop al,
     Aged 30 years,

6.   Sri Karthik R,
     S/o Late Rajagopal G,
     Aged 28 years,

7.   Smt. Nag aveni G,
     D/o Late Gop alap pa,
     Aged 49 years,

     Respondent Nos. 2 to 7 are
     R/at No.243, Chikka Begur,
     Begur Post, Beng aluru-560068.
                                                 ...Respondents

(By Sri Sai Kiran, Advocate for R1;
 Notice to R2 to R7 is dispensed with)


     This MFA is filed under Order 43 Rule 1(r) read
with Section 151 of CPC, against the ord er dated
20.01.2022 p assed on I.A.No.1 in O.S.No.6482/2019
on   the   file   of   the   XIX   Additional   City   Civil   and
Sessions Judge, Beng aluru City, (CCH-18), allowing
I.A.No.1 filed under Ord er 39 Rules 1 and 2 read with
Section 151 of CPC.

     This MFA coming on for admission this d ay, the
Court delivered the following:
                                   :: 3 ::


                           JUDGMENT

Heard Sri M.B.Chandra Chooda, learned

counsel for the appellant and Sri Sai Kiran,

learned counsel for the first respondent.

2. The appellant is defendant No.7 in

O.S.No.6482/2019 and the first respondent in this

appeal is the plaintiff. The suit is for specific

performance based on the agreement of sale said

to have been executed by defendants 1 to 6 in

favour of the plaintiff in respect of 40% of

undivided share out of 1-00 acre of agricultural

land in Sy.No.76/2 of Singasandra village, Begur

Hobli, Bengaluru South Taluk.

3. As the facts disclose, Gopalappa and

Rajagopal, the respective husbands of first and

second defendants, namely, Smt. Akkamma and

Smt. M.Manjula, executed an agreement of sale in

respect of 3-05 guntas of land in Sy.No.76/2 of

Singansandra village, Begur Hobli, Bengaluru :: 4 ::

South Taluk, in favour of Krishnappa on

14.09.1994. Since said Gopalappa and Rajagopal

did not execute the sale deed, Krishnappa filed a

suit for specific performance in O.S.No.4815/1997

and it was decreed on 28.01.2006. Thereafter,

the decree holder took out execution in

Ex.No.1309/2015. In the meantime, Krishnappa

assigned the decree in favour of H.Narayana, the

appellant herein. During pendency of the

execution petition, defendants 1 to 6 having

succeed as legal representatives of the judgment

debtors entered into an agreement with the

plaintiff in respect of 40% of 1-00 acre of

agricultural land in Sy.No.76/2 i.e., the subject

matter of suit O.S.No.6482/2019. In the

execution case, a compromise was arrived at.

Defendants 2 to 6 requested defendant No.7 to re-

convey 40% of the land in respect of which they

had entered into an agreement of sale with the

plaintiff. Defendant No.7 agreed for re-conveying :: 5 ::

0-32 guntas of land in Sy.No.76/2 and therefore

defendants 1 to 6 said no objection for

withdrawing Rs.3,98,750/- by the decree holder.

It appears that based on this compromise, revenue

records were re-entered in the names of

defendants 1 to 6.

4. Now, in the suit for specific performance

filed by respondent No.1 herein the appellant is

arrayed as defendant No.7, because, as agreed in

the compromise recorded in execution case, he did

not execute the sale deed in respect of this 40% of

the undivided share i.e., the subject matter of the

suit O.S.No.6482/2019. Probably, having noticed

this situation, the trial Court granted an order of

temporary injunction restraining the

appellant/defendant No.7 from creating third party

interest.

5. Sri M.B.Chandra Chooda, learned counsel

submits that defendant No.7 has no objection for :: 6 ::

executing sale deed in favour of defendants 1 to 6

as agreed in the compromise petition. But, the

order of injunction against him comes in the way

of executing the sale deed.

6. The respondent No.1/plaintiff does not

dispute the compromise recorded in the execution

petition. In the first respondent's suit for specific

performance, the necessary parties are defendants

1 to 6 only. The appellant is just arrayed as

defendant No.7, because the sale deed has not yet

been executed by him in favuor of defendants 1 to

6. Though it appears that the defendants obtained

the mutation of revenue records to their names,

unless there is proper conveyance in their favour,

they do not acquire any title. In the light of

these set of circumstances, the appellant can

make an application before the trial Court for

modification of the impugned order so that he can

execute sale deed in favour of defendants 1 to 6.

Order XXXIX Rule 4 CPC provides for modification :: 7 ::

of the order. Therefore giving liberty to the

appellant to make appropriate application before

the trial Court for modification of the order, this

appeal is disposed of.

IA No.1/2022 and 2/2022 do not survive for

consideration, they stand disposed of accordingly.

Sd/-

JUDGE

Kmv/-