Karnataka High Court
Sri.Rajendra S/O Ram Gaikwad vs Smt.Prabhavati W/O Bharma Ambewadi on 6 November, 2024
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NC: 2024:KHC-D:16188
CRP No. 100060 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO. 100060 OF 2020
BETWEEN:
SRI. RAJENDRA S/O RAM GAIKWAD,
AGE: 54 YEARS, OCC: ADVOCATE,
R/O: 1922, HUNS TALKIES ROAD,
BELAGAVI-590 002.
...PETITIONER
(BY SRI. SURESH.N.KINI AND
SRI. N.S. KINI, ADVOCATES)
AND:
1. SMT. PRABHAVATI
W/O BHARMA AMBEWADI,
AGE: 64 YEARS, OCC: HOUSEHOLD,
R/O: BHENDIGERI GALLI,
ANAGOL, TALUK AND DIST: BELAGAVI.
2. SRI. JINNAPPA
BHARATHI S/O APPAYYA AMBEWADI,
HM
AGE: 65 YEARS,
Digitally signed by
BHARATHI H M OCC: AGRICULTURIST,
Location: HIGH
COURT OF
KARNATAKA R/O: BHENDIGERI GALLI, ANAGOL,
DHARWAD BENCH
TALUK AND DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. RAMACHANDRA MALI, ADVOCATE FOR R2;
R1-SERVED)
THIS CRP IS FILED UNDER SEC.115 OF CPC, PRAYING
THAT THE IMPUGNED ORDER DATED 07.06.2018 PASSED BY
THE COURT OF THIRD ADDITIONAL SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, BELAGAVI, DISMISSING THE
PETITION IN EXECUTION CASE NO.79/2017 BE SET ASIDE AND
THE PETITION IN EXECUTION CASE NO.79/2017 BE ALLOWED
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CRP No. 100060 of 2020
IN FULL WITH COST THROUGHOUT, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION IS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
1. Aggrieved by the orders passed in
Exc.Case.No.79/2017, dated 07.06.2018, by III Addl. Senior
Civil Judge and CJM, Belagavi, the petitioner/decree holder is
before this Court.
2. The petitioner herein has filed a suit for specific
performance and the said suit came to be compromised. By
that time, the said suit came to be compromised, the
respondents/Judgment Debtors/defendants have already
executed an agreement in favour of another party and that
party had instituted a suit for specific performance, which was
pending consideration. On 17.08.2012, the parties in the first
suit have entered into compromise. As per Clause 7 of the
terms of compromise, the plaintiff and defendants admits that
in the event of non compliance of the terms of compromise
application and the supplementary agreement of
sale/development agreement and cancellation of the said deed
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referred, the defendants shall refund half of the total amount
received by them to the plaintiff and retain half of the total
amount received by them towards damages for non-compliance
of the terms of payment of amount by the plaintiff. By virtue of
this compromise, the plaintiff has to pay the amount on or
before 28.02.2013.
3. Clause 9 of the terms of the compromise reads
thus:
'9. Since the agreement of sale executed in favour
of Shri.Ravi Tavandappa Patil is subsequent to the
agreement of sale executed in favour of plaintiff,
the defendants shall get the said matter and
O.S.No.72/2011 disposed and in the event if the
advance amount of Rs.15,00,000/- received from
Shir.Ravi Tavanappa Patil is payable to him, the
defendants shall pay the said amount to Sri.Ravi
Tavanappa Patil.'
Thereafter, the present execution petition came to be filed. It is
the case of the defendants that as the plaintiff had not paid the
amount and as the time is the essence of the contract and the
decree holder failed to pay the money and in turn he could not
settle the same with the plaintiff in the other suit and the suit
came to be decreed. It is the case of the decree holder that on
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13.12.2013 a notice was issued by the Judgment debtors and
he gave the reply on 07.01.2014. It is further case of the
plaintiff decree holder that the Executing Court without
considering that there are latches on the part of the Judgment
debtors has dismissed the application and the Executing Court
has failed to order the execution petition. When the Judgment
debtors had taken all the amounts from the plaintiff and he has
to execute the sale deed and when he fails to execute the sale
deed, the Executing Court should have ordered the same.
Learned counsel for the petitioner further submits that even as
per the terms and condition of the compromise, particularly
clause 7, if there is no compliance and latches on the part of
the petitioner still he is entitled for 50% of the amount and this
aspect has not been considered by the Executing Court.
4. Learned counsel appearing for the respondents/
Judgment debtors submits that the suit which is mentioned at
Clause No.9 that is O.S.No.72/2011 is already decreed and
defendants here in has already filed an appeal before this Court
and the same is pending consideration. He further submits that
as per the terms and conditions of the compromise, the
petitioner has failed to pay the amount. As he has failed to pay
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the amount within the time, he could not negotiate with the
plaintiff in the other suit and in the process, the suit is decreed
and that decree cannot be executed and the Executing Court
has rightly dismissed the petition.
5. Having heard learned counsel on either side,
perused the material on record.
6. A perusal of the impugned order discloses that the
Executing Court has observed that as per clause 7 of the
compromise decree, the respondents shall refund half of the
total amount received by petitioner and retain half of the
amount with them towards damages for non-compliance with
the terms of the decree as well as supplementary agreement.
The petitioner/plaintiff himself has not complied with the terms
of supplementary agreement within the stipulated period.
Hence, on the strength of the compromise decree, the
petitioner cannot insist the Court to direct the respondents to
execute the registered sale deed in his favour. Accordingly, the
Executing Court has come to the conclusion that the execution
petition is not maintainable and dismissed the suit. The manner
in which the compromise is entered is unknown to law. In the
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compromise decree they have entered into a compromise
assuming and presuming the outcome of the suit, to which
petitioner/decree holder is not a party. When the matter is
pending before the Court what would be the result of the said
suit cannot be assumed and basing on that a compromise
cannot be entered into. Leaving all these things apart, even as
per the Executing Court, in case any violations of terms and
conditions of terms of compromise still the respondents are
entitled for 50% of the amount, which he has to pay and there
is no dispute on that, even the Executing Court in its order has
observed the same. In such a case, the Executing Court ought
to have ordered the execution as far as 50% of the amount is
concerned. However, as the petitioner is asking for execution of
the sale deed, the Executing Court had dismissed it. The
Execution of the sale deed is not possible as there is a decree
passed by the competent court directing the Judgment debtors
to execute the sale deed in favour of the plaintiff in the second
specific performance suit.
7. In the light of the above discussion, this Court
deems it appropriate to modify the order passed by the
Executing Court and petitioner is entitled for refund of 50% of
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the amount as mentioned in the compromise decree.
Accordingly, the following:
ORDER
i. The orders passed in Exc.Case.No.79/2017, dated
07.06.2018, by III Addl. Senior Civil Judge and
CJM, Belagavi is modified and the petitioner is
entitled for 50% of the refund of the amount as
mentioned in the compromise decree.
ii. Accordingly, the Civil Revision Petition is disposed
of.
iii. All I.As. in this Civil Revision Petition shall stand
closed.
Sd/-
JUSTICE LALITHA KANNEGANTI
VB
CT:BCK
