Karnataka High Court
A.Prathap Kumar S/O A. Nageshwararao vs G.Sambhashivarao S/O Narayan Das on 4 April, 2024
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RFA No. 100296 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100296 OF 2020 (MON)
BETWEEN:
A. PRATHAP KUMAR
S/O. A. NAGESHWARARAO
AGED ABOUT: 46 YRS,
BY HIS G.P.A HOLDER
A.SURESH BABU S/O. NARAYANAPPA,
AGED ABOURT: 46 YRS,
C/O. DOOR NO 392-A, WARD NO: 21,
S.M.V.NAGAR, 2ND CROSS RIGHT SIDE,
KAPPAGAL ROAD, BALLARI. PIN: 583102
...APPELLANT
(BY SRI. B. CHIDANANDA, ADVOCATE)
AND:
1. G.SAMBHASHIVARAO S/O. NARAYAN DAS,
Digitally signed
by SAMREEN AGED ABOUT: 64 YRS,
AYUB
DESHNUR R/O: GADANG STREET,
Location: HIGH
COURT OF COWL BAZAAR,
KARNATAKA
BALLARI. PIN: 583102.
2. ASHOK KUMAR RAGHOJI
S/O. SIRNIVAS RAO RAGHOJI,
AGED ABOUT: 66 YRS,
MANAGING DIRECTOR,
M/S RAGHOJI ENTERPRISES,
STAR AVENUE, 2ND FLOOR,
NO: 82, NADIDURGA ROAD,
BENSON TOWN,
BENAGALURU, PIN: 560046.
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NC: 2024:KHC-D:6140-DB
RFA No. 100296 of 2020
3. SRI. ANKUSH RAGHOJI
S/O. ASHOK KUMAR RAGHOJI,
AGED ABOUT: 41 YRS,
PROPRIETOR OF M/S. ARAV AND CO.,
KUDITHINI,
R/O: NO:403, 3RD FLOOR,
GOBIND PARK, NO: 17/9.
HALL ROAD, RICHARDS TOWN,
BENGLAURU, PIN: 560005.
...RESPONDENTS
(BY SRI. GANAPATI M. BHAT, ADVOCATE FOR R1;
SRI. H.R. DESHPANDE, ADVOCATE FOR R2 AND R3)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 41 RULE 1
AND 2 READ WITH SECTION 96 OF CPC., PRAYING TO SET ASIDE
THE ORDER DATED 18.01.2020, MADE ON I.A. NO. III AND IV IN
E.P.NO.19/2017, PASSED BY THE I ADDITIONAL SENIOR CIVIL
JUDGE, BALLARI, AND FURTHER TO ALLOW I.A. NO. III AND IV
FILED BY THE APPELLANT HEREIN, IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This First Appeal is preferred by objector/third party,
challenging the order dated 18.01.2020 in E.P. No.19/2017 on
the file of I Additional Senior Civil Judge, Ballari (for short,
hereinafter referred to as the 'Trial Court'), rejecting I.A.Nos.3
and 4 filed by the third party/objector.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Executing Court.
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3. The facts in nutshell are that, opponent in I.A.
Nos.3 and 4 before the Execution of proceedings, has filed
O.S.No.190/2014 before the Trial Court seeking relief of
recovery of money against the opponent Nos.2 and 3 in the
Execution proceedings. The said suit came to be decreed by
the trial Court by judgment and decree dated 31.08.2016,
directing the defendants therein to satisfy the claim made by
the plaintiff. Thereafter, the plaintiff in O.S.No.190/2014 has
filed E.P. No.19/2017, sought to execute the judgment and
decree passed by the Trial Court. In the said Execution
proceedings, the appellant herein / objector / third party has
filed I.A.Nos.3 and 4 under Order XXI Rule 58, 101, 103 read
with Section 151 of the Code of Civil Procedure, 1908 (for
short, hereinafter referred to as 'CPC') and Order XXI Rule 59
read with Section 151 of CPC, and sought for interference of
the Executing Court with regard to the claim made by the
plaintiff / decree holder against the defendants/Jdr's in the said
suit on the ground that, the defendant/Jdr No.2 had executed
registered Sale Agreement in favour of the objector/appellant
herein dated 11.06.2012 by receiving part consideration of
Rs.68,20,000/- out of total sale consideration of Rs.68,50,000/-
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, to sell the schedule property which is the subject matter of
the property attached by the Executing Court in E.P.
No.19/2017. Hence, the objector/appellant herein filed
application to treat his application as a suit and conclude the
right of the appellant/cross objector. The said application was
opposed by the plaintiff/DHR and the Trial Court, after
considering the material on record, formulated the points for
consideration, which reads as under:
"1. Whether the petitioner/third party
prove that, Jdr No.2 has executed registered
agreement of sale deed by receiving
Rs.68,20,000/-?
2. Whether petitioner/third party
proves that sale proceedings has to be
stayed?
3. Whether the respondent No.1
proves that agreement of sale deed is
created document?
4. What order?"
4. In order to establish their case, the
appellant/objector has adduced evidence through PW.1 and
marked eight documents at Ex.P.1 to P.8. The plaintiff/decree
holder was examined as DW.1 and produced two documents
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and the same were marked at Ex.D.1 and D.2. The Executing
Court by its order dated 18.01.2020 dismissed the applications
and feeling aggrieved by the same, objector/third party in E.P.
No.19/2017 has presented this appeal.
5. We have heard Shri. B. Chidananda, learned
counsel appearing for appellant; Shri. Ganapati M. Bhat,
learned counsel appearing for respondent No.1 and Shri. H. R.
Deshpande, learned counsel appearing for respondent Nos.2
and 3.
6. Shri. B. Chidananda, learned counsel appearing for
appellant invited the attention of the Court to paragraph No.13
of the impugned order passed by the Trial Court and argued
that, the appellant herein has filed O.S. No.81/2018 against the
defendants in O.S.No.190/2014, seeking relief of specific
performance of contract and the said suit is pending
consideration before the Trial Court. Emphasizing on these
aspects, he argued that the Executing Court in E.P.
No.19/2017, sought to attach the very same property which is
the subject matter in O.S.No.81/2018 and further arrived at a
conclusion that, the Agreement of Sale entered into between
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the defendants and the objector is barred by limitation. The
said finding recorded by the Executing Court would affect the
final adjudication of the suit in O.S No.81/2018 and as such
sought for interference by this Court.
7. Per contra, learned counsel appearing for
respondents supported the impugned order passed by the Trial
Court.
8. Having heard the learned counsel appearing for the
parties, we have carefully examined the documents relating to
pending proceedings in O.S.No.81/2018 and the documents in
O.S. No.190/2014 and taking into consideration the grounds
urged in the Memorandum of appeal, the following points arise
for consideration:
i) Whether the Executing Court has
committed an error in given finding with regard
to the subject matter of the suit in
O.S.No.81/2018?
ii) Whether the applications in I.A.Nos.3
and 4 filed by the objector is sustainable under
law?
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iii) Whether the impugned order passed
by the Executing Court requires interference?
iv) What order?
9. Having perused the original records, it is not in
dispute that the opponent No.1 in E.P. No.19/2017 was
arraigned as plaintiff in O.S.No.190/2014 filed against the
defendants therein (opponent Nos.2 and 3 in E.P. No.19/2017),
seeking relief of recovery of money and the said suit, on
contest, decreed on 31.08.2016. The operative portion of the
judgment and decree reads as under:
"The suit of plaintiff is hereby partly
decreed with costs.
The defendant No.1 and 2 jointly and
severally are hereby directed to pay a sum of
Rs.23,13,804/- with interests at the rate of
18% per annum from the date of suit till the
date of realization of entire amount to the
plaintiff with future interest."
10. It is submitted at Bar that, the judgment and
decree dated 31.08.2016 in O.S. No.190/2014 has reached
finality and the same is not challenged in appeal. On the other
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part, the objector/appellant herein in E.P. No.19/2017 has filed
O.S.No.81/2018 against the defendants therein (opponent
Nos.2 and 3 in E.P. No.19/2017) seeking relief of specific
performance of Agreement of Sale dated 11.06.2012 and the
said suit is pending consideration before the Competent
Jurisdictional Court. After succeeding in O.S.No.190/2014, the
plaintiff has filed E.P. No.19/2017 against the defendants in
O.S.No.190/2014 and sought to execute the judgment and
decree dated 31.08.2016 and during the said proceedings, the
objector/appellant herein has filed I.A.Nos.3 and 4 and sought
for interference of the Court on the ground that, the property in
which attachment is sought by the decree holder is the subject
matter in O.S.No.81/2018.
11. Having given our anxious consideration to the two
suits filed between and amongst the parties, O.S. No.81/2018
is filed by the objector / third party seeking relief of specific
performance and the said suit is pending consideration before
the Trial Court. The suit filed by the opponent No.1/decree
holder in O.S.No.190/2014 against the defendants/Jdrs, is for
recovery of money. Nature of the suits between the parties is
different and with this background, we have re-appreciated the
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finding recorded by the Trial Court in E.P. No.19/2017,
particularly at paragraph No.13, Executing Court has arrived at
a conclusion which reads as under:
"In the present case on hand, the
agreement of sale deed is barred by time
limitation, even third party objector filed a
suit in the year 2018."
12. On perusal of above paragraph, it could be
concluded that, the Trial Court has committed an error in giving
finding in respect of pleading made by the objector in O.S.
No.81/2018 filed by the Jdrs. The said finding would operate
against the objector / third party to continue the proceedings in
O.S. No.81/2018 and if the said finding is accepted nothing is
to be proved in O.S.No.81/2018. In that view of the matter,
we are of the view that, the finding recorded by the Executing
Court, holding that the Agreement of Sale between the objector
and Jdrs is barred by limitation would affect the right of the
objector and therefore, to that extent the finding requires to be
set aside in this appeal. Therefore, the point for consideration
refers to above favours the objector only with regard to the
finding recorded by the Executing Court, holding that the
Agreement of Sale is barred by time. It is made clear that, the
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observation made by Executing Court in E.P. No.19/2017 would
not influence the Trial Court in O.S. No.81/2018 to adjudicate
the suit on merits. Hence, we pass the following:
ORDER
1) Regular First Appeal is allowed in part.
2) Order dated 18.01.2020 in E.P. No.19/2017 on
I.A. Nos.3 and 4 on the file of I Additional
Senior Civil Judge, Ballari, is set aside insofar
as the finding recorded at paragraph No.13 of
the order with regard to the Agreement of Sale
deed dated 11.06.2012.
Sd/-
JUDGE
Sd/-
JUDGE
SMM
