Smt. G.P. Mangala Arun vs N. Srikanth
2022 Latest Caselaw 5558 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 28TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

      WRIT PETITION NO.15364 OF 2019 (GM-CPC)

BETWEEN

SMT. G P MANGALA ARUN
W/O ARUN KUMAR
AGED ABOUT 44 YEARS
R/AT 2610, I FLOOR, 26TH MAIN
38 'B' CROSS, 9TH BLOCK
JAYANAGAR
BENGALUR-560 069.
                                            ...PETITIONER
(BY SRI AJAY KUMAR M, ADVOCATE)

AND

N SRIKANTH
SINCE DECEASED BY HIS LEGAL REPRESENTATIVE

SMT. S V SANDHYA
W/O LATE N SRIKANTH
R/AT NO.2610, I FLOOR, 26TH MAIN
38 'B' CROSS, 9TH BLOCK
JAYANAGAR
BENGALURU-560 069.

PRESENTLY R/AT
SRI SUBRAMANYA NILAYA
12/6, 4TH MAIN ROAD
RAGAVENDRA BLOCK
GIRINAGARA WARD NO.162
                                  2




BANASHANKARI 3RD STAGE
BENGALURU-560 060.
                                                   ....RESPONDENT
(BY SRI SUNANDA RAJ, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 10TH DECEMBER, 2018 PASSED BY THE LVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
CITY ON IA.NO.6 IN ORIGINAL SUIT NO.3993 OF 2017 AS PER
ANNEXURE-E AND FURTHER BE PLEASED TO ALLOW THE
APPLICATION FILED BY PLAINTIFF FOR ATTACHMENT BEFORE
JUDGMENT AND GRANT SUCH OTHER RELIEF/RELIEFS AS THIS
HON'BLE   COURT    DEEMS    FIT   IN  THE   FACTS   AND
CIRCUMSTANCES OF THE CASE.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
N 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This Writ Petition is filed by the plaintiff challenging the

order dated 10th December, 2018 in Original Suit No.3993 of

2017 on the file of the LVIII Additional City Civil and Sessions

Judge, Bengaluru dismissing IA.6.

2. The relevant facts for adjudication of this Writ Petition

are that the plaintiff has filed suit in Original Suit No.3993 of

2017 seeking decree, against the defendant for sum of

Rs.92,46,000/- with interest. In the said suit, defendants

entered appearance and filed detailed written statement denying

the averments made in the plait. In the meanwhile, the plaintiff

filed application in IA.VI under Order XXXVIII Rule 5 read with

Sections 136 and 151 of Code of Civil Procedure seeking an

order of conditional attachment before judgment against the

defendants and the said application was resisted by the

defendants by filing objection. The trial Court, after considering

the material on record, by impugned order dated 10th December,

2018, rejected the application in IA.VI. Feeling aggrieved by the

same the plaintiff has preferred this Writ Petition.

3. I have Sri Ajay Kumar M, learned counsel appearing for

the petitioner and Sri Sundar Raj, learned counsel appearing for

the respondent.

4. Sri Ajay Kumar M, learned counsel appearing for the

petitioner submitted that the perversity in the order impugned is

with regard to rejection of the application IA.VI on the ground

that the defendant has denied the allegation of denying the

execution of agreement of sale dated 26th May, 2014. He further

contended that the trial Court be directed to consider the said

application seeking conditional attachment of before judgment

and the claim made by the plaintiff is to an extent of

Rs.92,46,000/- and accordingly, sought for interference in this

Writ Petition.

5. The said argument was countered by learned counsel

appearing for the respondent.

6. Taking into account the finding recorded by the trial

Court, it is not in dispute that the plaintiff has filed suit for

recovery of sum of Rs.92,46,000/- based on the agreement of

sale dated 26th May, 2014. Perusal of the averments made in

the written statement would indicate that the defendant took up

specific defence of execution of the agreement of sale. In that

view of the matter, I am of the view that as the plaintiff has not

filed suit for specific performance of contract and seeking relief

of refund of advance amount, I am of the considered opinion

that the trial Court is justified in rejecting the application as the

plaintiff has not shown valid ground to allow the application

seeking direction to attach the property conditionally and

therefore, the Writ Petition is dismissed as devoid of merits.

However, after learned counsel appearing for the parties, since

the claim made by the plaintiff is with regard to refund of the

consideration made in the agreement of sale, which is also

disputed by the other side, the trial Court shall expedite the

hearing. It is also made clear that the dismissal of this Writ

Petition would not come in the way of the plaintiff to make an

application, since the said IA.6 is filed before evidence.

Therefore, liberty is reserved to petitioner to make application, if

she is so advised. In the result, petition stands dismissed.

Sd/-

JUDGE

lnn