Karnataka High Court
Smt Nethra Narayan vs Sri N J Murthy on 7 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.427/2022 (CPC)
BETWEEN:
1 . SMT. NETHRA NARAYAN
W/O.LATE N.J.LAKSHMI NARAYAN,
AGED ABOUT 37 YEARS,
2 . ANJU L. NARAYAN
D/O LATE N.J.LAKSHMI NARAYAN,
AGED ABOUT 13 YEARS,
3 . SANJU L. NARAYAN
D/O LATE N.J.LAKSHMI NARAYAN,
AGED ABOUT 07 YEARS,
APPELLANTS 2 AND 3 ARE MINORS,
AND ARE REPRESENTED BY THEIR
NEXT FRIEND I.E., THEIR MOTHER
AND NATURAL GURADIAN
SMT. NETHRA NARAYAN,
THE APPELLANT NO.1
ALL R/AT NO.1104, 2ND CROSS,
SAKAMMA HANUAMNTHAPPA LAYOUT,
NEAR AMBEDKAR MEDICAL COLLEGE,
KAVAL BYRASANDRA,
BENGALURU-560032.
... APPELLANTS
(BY SRI A.MADHUSUDHANA RAO, ADVOCATE)
2
AND:
1 . SRI N.J. MURTHY
S/O N.A. JAYARAMAIAH,
AGED ABOUT 51 YEARS,
R/AT 8/89, SHANTIVILAS,
5TH CROSS, S.H.LAYOUT,
KAVAL BYRASANDRA,
R.T.NAGAR POST,
BENGALURU-560032.
2 . M/S. MEVANIR SYSTEMS PVT. LTD.,
HAVING THEIR REGD OFFICE
AT BEECH , SECOND FLOOR,
MANYATHA EMBASSY BUSINESS PARK,
OUTER RING ROAD, (HEBBAL),
BANGALORE-560045.
REP. BY ITS MANAGING DIRECTOR.
... RESPONDENTS
(BY SRI ABHINAV R., ADVOCATE C/R1
[NOTICE NOT ORDRED IN R/O R2])
THIS M.F.A. IS FILED U/O.43 RULE 1(q) R/W SECTION 151
OF CPC, AGAINST THE ORDER DT.08.10.2021 PASSED IN
O.S.NO.3944/2020 ON THE FILE OF THE XXVII ADDITIONAL
CITY CIVIL JUDGE, BENGALURU CITY, DISMISSING IA FILED
U/O.38 RULE5 OF CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
JUDGMENT
Heard the learned counsel for the appellants/plaintiffs and
learned counsel for the caveator-respondent No.1/defendant
No.1.
2. This miscellaneous second appeal is filed challenging
the rejection of application filed under Order 38 Rule 5 of CPC
filed by the plaintiffs in O.S.No.3944/2020 dated 08.10.2021 on
the file of the XXVII Additional City Civil Judge at Bengaluru City.
3. The factual matrix of the case of the plaintiffs before
the Trial Court in a suit for declaration is that the release deed
executed by the defendant No.1 from the husband of the first
plaintiff in respect of the schedule property is illegal, void and
not binding. The plaintiffs also filed the suit for recovery of
money and also sought for a direction the defendant No.1 to pay
a sum of Rs.92,82,109.75/- being the rent which she has
received from defendant No.1 in respect of share of late
N.J. Lakshminarayana, who is the husband of the first plaintiff. It
is the main contention in the suit that the defendant No.1 is the
brother of the husband of the first plaintiff and her husband
passed away on 13.10.2019 leaving behind the plaintiffs. It is
contended that late N.J. Lakshminarayana was running a retail
outlet of petroleum products i.e., the petrol and diesel, as the
dealer of M/s. Indian Oil Corporation in the name and style M/s.
Jai Hanuman Service Station as its sole proprietor. In this
regard, a dealership agreement was entered into between late
N.J. Lakshminarayana and M/s. Indian Oil Corporation on
27.05.2004. After the death of the husband of the first plaintiff,
the first plaintiff made a request to M/s. Indian Oil Corporation
to permit her to continue the business of M/s. Jai Hanuman
Service Station as its Proprietrix. However, in view of the fact
that presently first plaintiff is the Corporator of BBMP, she has
been advised to constitute a partnership concern consisting of
her minor daughters as its partners and submit the application
for continuing the said partnership as the dealer of M/s. Indian
Oil Corporation.
4. It is contended that the defendant No.1 is the elder
brother of the husband of the first plaintiff late
N.J. Lakshminarayana. The defendant No.1 is holding a senior
position in the Police Department of the Government of
Karnataka and as of now, he is working as Deputy Commandant.
Being the elder brother of late N.J. Lakshminarayana, the
husband of the first plaintiff was wielding lot of influence on the
husband of the first plaintiff. The husband of the first plaintiff
was also having high respect towards the defendant No.1, in
view of the fact that he was his elder brother and is also holding
a good position in the Police Department. The defendant No.1
was having a dominating influence on late N.J.
Lakshminarayana, the husband of the first plaintiff and he was
also interfering in the business activities of the husband of the
first plaintiff relating to the service station (petrol bunk) and also
the MRP Liquor Shop which was being run in the name of
Golisoda Wines and the license in respect of the said shop was
standing in the name of late husband of the first plaintiff and
after the death of her husband, it is the first plaintiff, who is
having said license in her name and is carrying on the said
business.
5. It is also contended that during the life time of the
husband of the first plaintiff, he along with defendant No.1 were
the joint owners of the Industrial Unit measuring 21,500 sq.ft. in
the eighth floor of the Industrial building called Green Heart,
situated in Phase IV, forming part and parcel of M Far - Manyata
Technology Park, Nagawara, Bangalore along with 27 covered
car parking spaces and with an undivided share of 6,615 sq.ft. in
the land in Sy.No.114/2 and others situated at Nagawara Village,
Kasaba Hobli, Bangalore North Taluk and the same was acquired
by late husband of the first plaintiff along with defendant No.1
under a registered sale deed dated 24.03.2016. The said
property which was the joint holding of late N.J.
Lakshminarayana and defendant No.1 is morefully described in
the schedule 'A' to 'C'.
6. It is further contended that after purchasing the
schedule 'A' property along with the undivided share in the land
in schedule 'A' property, the husband of the first plaintiff along
with defendant No.1 had executed a registered lease deed dated
16.05.2016 in favour of one M/s. SLK Software Services Pvt. Ltd.
in respect of super built up area measuring 89,378 sq.ft. along
with M/s. Manyata Promoters Pvt. Ltd. and M/s. Manyata
Projects Pvt. Ltd. M/s. Manyata Promoters Pvt. Ltd. were the
owners of 56,529 sq.ft. super built up area and M/s. Manyata
Projects Pvt. Ltd., the developers of the project had retained
11,349 sq.ft. and the husband of the first plaintiff and defendant
No.1 were the owners of the remaining extent of 21,500 sq.ft.
and the registered lease deed dated 16.05.2016 is also
produced.
7. Subsequently, as the aforesaid lessee vacated the
premises, late husband of the first plaintiff along with defendant
No.1 has entered into fresh registered lease deed dated
30.05.2018 in respect of suit schedule 'C' property and the
proportionate undivided share and the car parks in favour of
defendant No.1. The registered lease deed was executed along
with other owners of the remaining extent of lease hold
property. As per the terms of the said registered lease deed, the
husband of the first plaintiff and defendant No.1 are entitled to
receive a sum of Rs.16,55,500/- per month towards their super
built up area of 21,500 sq.ft. and a sum of Rs.1,45,000/- per
month towards car parking rent.
8. It is contended that the husband of the first plaintiff
late N.J. Lakshminarayana was not a highly educated person and
had only studied up to Diploma in Electronics and he was being
guided largely by defendant No.1 in his day to day activities. It
is contended that thereafter late N.J. Lakshminarayana started
taking liquor and right from the year 2016, he was being under
treatment for the ailments relating to the liver and he was being
treated by Dr. Dinesh Kini, a Gastroenterologist attached to
Sakra Hospital and he was visiting Kini's Gastro Clinic which was
being run by the said Doctor. It is contended that over a period,
late N.J. Lakshminarayana became addicted to alcohol and he
was admitted to Sakra World Hospital during 06.08.2018 to
10.08.2018 with history of jaundice and his both the legs were
swollen. Even thereafter, late N.J. Lakshminarayana was visiting
Dr. Dinesh Kini and he was advised for getting admitted for a de-
addiction programme in St. John's Hospital from 20.08.2018 to
31.08.2018 which indicates the said fact.
9. It is further contended that when late N.J.
Lakshminarayana was again admitted to Sakra World Hospital
during 29.12.2018 to 11.01.2019 and he was also diagnosed as
suffering from Hepatic Encephelopathy which is a
neuropsychiatric disorder arising out of liver disfunction. During
this period, defendant No.1 was giving an impression to the first
plaintiff that he is taking care of the medical requirements of late
N.J. Lakshminarayana and he was accompanying late N.J.
Lakshminarayana, whenever he was going out, including the
visits to the Doctor. The first plaintiff, who is taking care of
second and third plaintiffs, who are her minor daughters were
also depending upon defendant No.1 and she bonafide believed
that defendant No.1 is helping her and her husband. After the
death of her husband, it was very shocking and surprising to her
that the bank operations of Jai Hanuman Service Station were
being carried on with State Bank of India by defendant No.1 by
creating the documents and defendant No.1 has operated the
accounts even after the death of her husband late N.J.
Lakshminarayana and on enquiry, she came to know that an
amount of Rs.92,82,109.75/- were not credited to the over draft
account or to the current account for the period from 15.11.2019
to 31.12.2019.
10. It is also contended that defendant No.1 was
claiming that he is managing the affairs of the service station
during the said period, has deliberately misappropriated a sum
of Rs.92,82,109.75/-. Hence, he is liable to pay the said
amount. It is also contended that the defendant No.1 got
created the document of release deed without any consideration
and he is collecting rent from the tenants. Hence, filed the suit
for recovery of money of Rs.92,82,109.75/- and to declare that
the registered release deed dated 19.09.2018 as illegal, void and
not binding on the plaintiffs and for a mandatory injunction for
cancellation of the release deed and also sought for the release
of the amount in a sum of Rs.1,96,05,627/- being the rents
which he as received from defendant No.2 in respect of the
share of her husband late N.J. Lakshminarayana and further
sought for an order of mandatory injunction directing defendant
No.2 to continue to pay the plaintiffs, the rents payable in
respect of the half share of late N.J. Lakshminarayana in the suit
schedule property and also seeking the relief of permanent
injunction restraining the defendant No.1 from dealing with the
half undivided share of the plaintiffs in the suit schedule
property. The plaintiffs also inter-alia sought for the relief of
attachment of the rent, as reiterated in the averments of the
plaint.
11. The defendant No.1 appeared and filed the written
statement contending that the very application is misconceived
and attachment sought in relation to half share of the suit 'C'
schedule property cannot be granted. The plaintiffs have
presumed that they have got half share in the suit schedule
property and the suit filed for the declaration and other allied
relief's cannot be granted. It is contended that the plaintiffs
have not made out semblance of the case much less a prima
facie case. The power of the Court to pass an order of
attachment before judgment is an extraordinary power. The
Courts can make such order, if it is satisfied that the party
against whom it is sought to be made is likely to dispose of his
property or remove from the local jurisdiction of the Court and
no such effort has been made and hence, the question of
granting any attachment does not arise. It is contended that
simple mention of an apprehension is not sufficient and simple
reproduction of the language employed in Order 38 Rule 5 will
be insufficient and plaintiffs are attempting to convert an illusory
claim which is not even an unsecured debt into secured debt. It
is also contended that the first plaintiff is a Corporator of BBMP
and she is an influential lady with much political connection and
there were no issues during the life time of the husband of the
first plaintiff and the husband of the first plaintiff did not
challenge the very execution of the release deed and he did not
make any claims to the rents that were being received from the
plaint 'C' schedule property. After the death of late N.J.
Lakshminarayana on 13.10.2019, the relationship between the
plaintiffs and the defendants sourced. The first plaintiff using
grievous ingenious methods, started laying claims over the
properties in which she had no semblance of right. Late N.J.
Lakshminarayana was running a liquor business under the name
and style as Golisoda Wines. The said business was running
Rs.10 lakhs per month. Apart from the said business, the first
plaintiff was also running the family business of retail vending of
petroleum products under the name and style Jai Hanuman
Service Station.
12. It is contended that the plaintiffs have now
fabricated the story contending that the first defendant has
forged the signature of late N.J. Lakshminarayana as regards the
authorization letter. On the basis of said authorization letter, the
plaintiffs have made an imaginary claim of Rs.92,82,109.75/- in
the suit. The plaintiffs have not produced any documents
indicating that the first defendant either withdraw the amount as
contemplated by the plaintiff, nor there is documents to show
that the defendant No.1 has transferred the same amount to his
bank accounts. The plaintiff has produced the copy of the
statement of accounts; it does not show any withdrawal from the
side of the defendants. There is no explanation how such huge
amount came to be drawn in the averments made in the plaint.
The allegation is nothing but a guesswork without any basis. It
is clear that the first plaintiff is misusing her powers as the
Corporator and using the present suit for threatening the
defendant No.1 to settle the suit claim. It is contended that
some arbitrary figures have been shown and no reliance can be
placed on the document No.14. It is further contended that
plaintiffs have also filed an application restraining the defendants
from alienating the suit schedule property with respect to the
half share of the schedule 'B' and 'C' properties and already
injunction has been granted and now, they cannot claim any
relief of attachment.
13. The Trial Court, having taken note of the pleadings
of the parties, formulated the point whether the plaintiffs have
made out a prima facie case, in order to grant an order of
attachment before judgment with respect to the rents payable
by the defendant No.2 to defendant No.1 in respect of his half
share in the suit 'C' schedule property.
14. The Trial Court, having considered both oral and
documentary evidence placed on record, comes to the conclusion
that the plaintiff has not made out a prima facie case, since
there is already a document of release deed and the matter
requires trial and the same would be considered only after full-
fledged trial and not at this stage. The Trial Court also comes to
the conclusion that already this Court has granted an interim
order of injunction against the defendants from alienating,
encumbering half share in the schedule 'B' and 'C' properties.
Being aggrieved by the said order of rejection of application filed
under Order 38 Rule 5 of CPC, the present miscellaneous first
appeal is filed.
15. Learned counsel for the appellants in his argument
would vehemently contend that there is no dispute with regard
to the fact that the husband of the first plaintiff and the
defendant No.1 are brothers. It is also not in dispute that both
of them have jointly purchased the schedule 'C' property. It is
contended that husband of the first plaintiff was addicted to
alcohol and the defendant No.1 obtained the release deed
without any consideration. It is also the contention of the
learned counsel for the plaintiffs that defendant No.1 has
misappropriated the amount of the petrol bunk and contend that
cheques have been drawn even after his death. Learned counsel
also brought to notice of this Court the authorization letter dated
11.10.2019 and contend that the same is obtained when he was
in ventilation and document Nos.10 to 12 clearly disclose the
same. It is contended that when the release deed was obtained
on 19.09.2018, the husband of the first plaintiff was taking
treatment even prior to that and nothing is mentioned in the
order with regard to the fact that he was taking treatment for
de-addiction and the documents are produced before the Trial
Court and those documents are ignored by the Trial Court while
passing an order and attachment is sought only for half share of
rent and not in respect of the property. Hence, the Trial Court
committed an error in passing such an order.
16. Learned counsel for the appellants/plaintiffs, in
support of his argument, relied upon the judgment of the Apex
Court in RAJENDRAN AND OTHERS VS. SHANKAR
SUNDARAM AND OTHERS reported in (2008) 2 SCC 724,
wherein the Apex Court has held that the Court while invoking
Order 38 Rule 5 of CPC is required to form a prima facie opinion
at that stage, it need not go into the correctness or otherwise of
all the contentions raised by the parties.
17. Per contra, learned counsel for the caveator-
respondent No.1 would submit that the release deed was
executed in 2018 and the same is stated in Para No.16 of the
plaint. It is contended that Jai Hanuman Service Station was run
by their father and suit is filed only to exert the remedy. It is
also contended that the first plaintiff is the Corporator and the
counsel also brought to notice of this Court newspaper report
and contend that FIR was registered and two months after the
registration of the FIR, suit was filed. The counsel also brought
to notice of this Court that the father of husband of the first
plaintiff and defendant No.1 also filed the complaint and release
deed is executed in 2018 and the husband of the first plaintiff
died after one year of execution of release deed and statement
of account does not disclose anything about misappropriation. It
is also contended that suit is filed for the partition in
O.S.No.6138/2020 and the said late N.J. Lakshminarayana has
not raised the said dispute during his life time. The counsel also
submit that already interest of the plaintiffs is protected by
passing an order of injunction and the question of granting any
order of attachment does not arise.
18. Learned counsel for the caveator-respondent No.1,
in support of his argument, relied upon the judgment in RAMAN
TECH & PROCESS ENGG. CO. AND ANOTHER VS. SOLANKI
TRADERS reported in (2008) 2 SCC 302, wherein the Apex
Court has observed that the plaintiff to avail the benefit need to
show, prima facie, that his claim is bona fide and valid and also
satisfy the Court that the defendant is about to remove or
dispose of the whole or part of his property, with the intention of
obstructing or delaying the execution of any decree that may be
passed against him.
19. The counsel also relied upon the judgment of this
Court in KRISHNAPPA VS. SMT. K.N. SRIDEVI reported in
ILR 2012 KAR 3328, wherein this Court has held that the
purpose of Order 38 Rule 5 is not to convert an unsecured debt
into a secured debt. Any attempt by a plaintiff to utilize the said
provisions as a leverage for coercing the defendant to settle the
suit claim should be discouraged.
20. The counsel also relied upon the judgment of the
Apex Court in CHANDRIKA PRASHAD SINGH AND OTHERS
VS. HIRA LAL AND OTHERS reported in 1923 SCC ONLINE
PAT 89 and brought to notice of this Court Para Nos.6 and 7 of
the judgment with regard to believing the case of the parties and
exercising the power under Order 38 Rule 5 of CPC.
21. In reply to the arguments of the learned counsel for
caveator-respondent No.1, learned counsel for the appellants
brought to notice of this Court that the authorization letter was
obtained when he was in ventilation and cash receipt has not
been deposited. Hence, suit is filed for recovery of an amount of
Rs.92,82,109.75/- and the income declared is not in consonance
with the same. It is also contended that attachment is in respect
of money i.e., rentals which have been received by defendant
No.1 from defendant No.2. The counsel also would submit that
the property under release deed is worth almost Rs.13 Crores
and 50% of the same would come to Rs.6.5 Crores and the
same is also without any consideration and lease deed is
executed jointly in respect of the said property by both the
defendant No.1 and the husband of the first plaintiff. When such
being the case, all these aspects have not been considered by
the Trial Court.
22. In reply to the reply argument of the learned counsel
for the appellants, the learned counsel for the caveator-
respondent No.1 would submit that the father of the husband of
the first plaintiff and defendant No.1 also signed the said release
deed and hence, the question of any suppression does not arise.
23. Having heard the learned counsel for the appellants
and learned counsel for the caveator-respondent No.1 and also
considering the material available on record, it is not in dispute
that both the husband of the first plaintiff and the defendant
No.1 had purchased the schedule 'C' property and the document
of sale deed disclose that the same was purchased in the year
2016. The documents which have been relied upon by the
learned counsel for the appellants and learned counsel for the
caveator-respondent No.1 is not in dispute with regard to the
execution of the lease deed in favour of the tenant and the only
contention is that husband of the first plaintiff was addicted to
alcohol and therefore, he was admitted to de-addiction centre
and defendant No.1 misappropriated the amount. The fact that
the husband of the first plaintiff died in the hospital is not in
dispute.
24. The main contention of the learned counsel for the
appellants by producing the document Nos.10 to 12 is that the
document of authorization was obtained by the defendant No.1
on 11.10.2019 to draw the money when he was in the hospital
at that time is also not in dispute, since document No.8 disclose
the earlier admission of the husband of the first plaintiff in the
year 2018 when he was under treatment at Sakra World
Hospital. The document of release deed is dated 19.09.2018
and other document i.e., document No.10 disclose that he was in
the hospital from 29.12.2018 to 11.01.2019 and the letter was
addressed to the Bank Manager on 11.10.2019, wherein account
details are mentioned and a request was made to consider all
the cheques/letters/documents to be signed by his brother on
his behalf as Proprietor of Jai Hanuman Service Station. The
document No.12 is also clear that late N.J. Lakshminarayana
passed away on 13.10.2019.
25. It is also important to note that document No.13
clearly disclose that on 10.10.2019, 11.10.2019 and 12.10.2019,
he was in ventilation. It is also the case of the plaintiffs that an
amount of Rs.92,82,109.75/- was misappropriated during the
said period, as per the document No.14 and the plaintiff also
claimed half of rent in a sum of Rs.92,82,109.75/-. The
document No.16 is the account extract for the period from
01.10.2019 to 14.02.2020. The counsel also brought to notice
of this Court some of the documents relating to transfer of
amount. When such averment is made and in the plaint also it is
specifically pleaded with regard to the same, the documents
which have been placed before the Trial Court is very clear with
regard to the condition of the husband of the first plaintiff. No
doubt, in the written statement the defendant No.1 denied the
allegations made in the plaint, particularly in Para No.6 and the
suit is filed for recovery of money and also sought for the relief
of declaration that release deed as null, void and illegal. It has
to be noted that the documents are produced with regard to the
health condition of her husband i.e., document Nos.9 to 13, as
he was under continuous treatment even prior to execution of
the alleged release deed and no dispute with regard to the fact
that there was a release deed and the fact that very particular
property was purchased in the joint names of the husband of the
first plaintiff and defendant No.1 in the year 2016 is not in
dispute.
26. It has to be noted that there is no dispute with
regard to the fact that husband of the first plaintiff and
defendant No.1 had executed the lease deed in favour of the
tenant and were getting the rent jointly is also not in dispute.
The only dispute is with regard to the execution of the release
deed. It is the specific allegation that the defendant No.1 was
taking care of health of his brother and the document of
authorization was obtained when he was in ventilation. The
document No.8 is very clear that even prior to release deed, he
took treatment at Sakra World Hospital and he was inpatient
from 06.08.2018 to 10.08.2018. I have already pointed out that
the said document is prior to execution of the release deed and
once again, he was admitted to hospital for chronic liver disease
from 29.12.2018 to 11.01.2019. The document No.11 i.e., letter
dated 11.10.2019 is very clear that letter was addressed to the
Bank Manager, State Bank of India and on that date, he was in
ventilation as per the hospital records. The main dispute is that
it is a created document and the defendant No.1 got transferred
the amount to his account and even after the death of his
brother also, he had drawn the money.
27. When such prima facie material is placed before the
Court, the Trial Court ought to have considered the same and
the Trial Court comes to the conclusion that already there is a
release deed and the validity of the release deed has to be
decided by the Court and until the validity of the released deed
is decided by the Court, the right of the plaintiffs over the suit 'C'
schedule property cannot be inferred, is an erroneous approach.
Though the first plaintiff prima facie has produced the
documents pertaining to health condition of her husband, even
prior to execution of the release deed, the Trial Court ought to
have taken note of the fact that both the defendant No.1 and the
husband of the first plaintiff have purchased the property jointly
in the year 2016 itself and thereafter, entered into a lease deed
in favour of the tenant jointly and this document of lease deed is
challenged placing the material on record that his health
condition had deteriorated and he was addicted to alcohol and he
was having chronic liver disease and was admitted to hospital for
de-addiction. When such circumstances have been pleaded
before the Trial Court by producing documents, the same have
not been considered by the Trial Court.
28. Learned counsel for the appellants/plaintiffs also
rightly brought to notice of this Court that though sufficient
materials are placed before the Court with regard to the health
condition of the husband of the first plaintiff with regard to his
treatment, nothing is discussed with regard to he being admitted
to de-addiction centre as well as the fact that he was taking
treatment and these materials have not been considered by the
Trial Court while passing an order on the application filed under
Order 38 Rule 5 of CPC and ignored the medical records as
contended by the learned counsel for the appellants. These are
the factors which clearly disclose prima facie case of the
plaintiffs. The judgment of the Apex Court referred by the
learned counsel for the appellant is also clear that while invoking
Order 38 Rule 5 CPC is required to form a prima facie opinion at
that stage, it need not go into the correctness or otherwise of all
the contentions raised by the parties.
29. No doubt, learned counsel for the caveator-
respondent No.1 also relied upon the judgment of the Apex
Court in RAMAN TECH & PROCESS ENGG. CO.'s case, in the
said judgment, the Apex Court has held that the plaintiff to avail
the benefit need to show, prima facie, that his claim is bona fide
and valid and also satisfy the Court that the defendant is about
to remove or dispose of the whole or part of his property, with
the intention of obstructing or delaying the execution of any
decree that may be passed against him. The counsel also
brought to notice of this Court Para Nos.5 and 6 of the said
judgment, wherein it is discussed with regard to scope of Order
38 Rule 5 of CPC. In the case on hand, this Court has already
taken note of the medical records of the husband of the first
plaintiff and also the circumstances under which the release
deed came into existence and operation of the account of the
husband of the first plaintiff by the defendant No.1, when he was
in ventilation and the said judgment is not applicable to the facts
of the case on hand.
30. In the judgment in KRISHNAPPA's case relied upon
by the learned counsel for the caveator-respondent No.1, this
Court has held that the purpose of Order 38 Rule 5 of CPC is not
to convert an unsecured debt into a secured debt. Here is not a
case of unsecured debt and in the case on hand, suit is filed
seeking the relief of declaration to declare the release deed as
null and void and it is also pleaded with regard to the
circumstances under which the document of release deed came
into existence. Hence, the said judgment is also not applicable
to the facts of the case on hand.
31. In the other judgment in CHANDRIKA PRASHAD
SINGH's case, learned counsel for the caveator-respondent
No.1 brought to notice of this Court Para Nos.6 and 7 with
regard to believing the case of the parties and exercising the
power under Order 38 Rule 5 of CPC.
32. Having taken note of factual aspects of the case, this
Court in detail discussed the circumstances under which the
release deed came into existence and taken note of the fact that
both the husband of the first plaintiff and defendant No.1 jointly
purchased the property and executed the lease deed. But, the
document came into existence when he was not keeping his
good health and the said fact has not been taken note by the
Trial Court and the Trial Court comes to the conclusion that no
prima facie case is made out and the very approach of the Trial
Court is erroneous and the Trial Court ought to have considered
the medical records and also the fact that document of release
deed came into existence on 19.09.2018 and prior to that the
husband of the first plaintiff was taking treatment in the hospital.
Further, the allegation is also that he was addicted to alcohol
and was suffering from liver disease and medical records also
supports the case of the plaintiffs and those circumstances are
not taken note of by the Trial Court and committed an error in
rejecting the application. Hence, the order impugned requires
interference.
33. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 08.10.2021 in
O.S.No.3944/2020 on the file of the
XXVII Additional City Civil Judge at
Bengaluru City, is hereby set aside and
consequently, the application filed under
Order 38 Rule 5 of CPC is allowed and
the relief as sought in the application is
granted in favour of the plaintiffs.
Sd/-
JUDGE
ST
