Karnataka High Court
Sri. R S Bhadriprasad vs Sri. Umesh H K on 6 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:5517
MFA No. 5741 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5741 OF 2024 (CPC)
BETWEEN:
1. SRI R S BHADRIPRASAD
S/O LATE R N SHANKARAMURTHY
AGED ABOUT 51 YEARS
2. SMT. R B PRAMODA PRASAD
W/O R.S. BHADRI PRASAD
AGED ABOUT 48 YEARS
BOTH ARE R/O No.114 'B'
NARASIMHA NILAYA,
HOSALINE ROAD,
HASSAN - 573201
Digitally signed ...APPELLANTS
by DEVIKA M (BY SRI MOHAN P S, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
SRI UMESH H K
S/O H B KRISHNAPPA
AGED ABOUT 54 YEARS
R/O MAHALAKSHMI NILAYA,
2ND MAIN ROAD, 4TH CROSS,
HEMAVATHI NAGARA
HASSAN - 573201
...RESPONDENT
(BY SRI VARUN R R, ADVOCATE FOR
SRI APPANNAGOWDA K)
-2-
NC: 2025:KHC:5517
MFA No. 5741 of 2024
THIS MFA IS FILED U/O 43 RULE 1(c) R/W SECTION
151 OF CPC, AGAINST THE ORDER DATED 03.08.2024
PASSED IN MISC.NO.64/2021 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE AND CJM, HASSAN AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel appearing for the
respective parties.
2. The factual matrix of the case is that the
respondent/plaintiff entered into the sale agreement with
the appellant/defendant for sale consideration of
Rs.37,50,000/- and as on the date of sale agreement on
04.05.2018, made the payment of Rs.35,00,000/- through
RTGS and thereafter when the appellant herein did not
come forward to execute the sale deed, filed the suit for
specific performance and in the said suit, notice was
ordered and same was served through post as well as
Court and endorsement was received by the post office as
NC: 2025:KHC:5517
'not claimed' and endorsement was received by the bailiff
as 'refused to receive the same' and hence, he was placed
exparte and thereafter, judgment and decree was passed
on 27.09.2021 and immediately, Miscellaneous Petition
was filed under Order IX Rule 13 of CPC seeking for
setting aside the judgment and decree dated 27.09.2021
and notice was also served on the respondent/plaintiff on
17.11.2021 and thereafter, respondent/plaintiff also filed
an Execution Petition to obtain the regular sale deed and
in the execution petition also notice was issued to the
appellants/defendants and same was returned with an
endorsement 'not claimed'. Hence, an application was
filed for appointment of Court Commissioner and sale deed
also obtained from the Court through Court Commissioner.
3. The main contention of the learned counsel for
the appellants that the respondent managed to get the
endorsement as 'not claimed' and 'refused' and also in the
miscellaneous petition filed under Order IX Rule 13 of CPC,
bailiff and postman examined before the Court as the
NC: 2025:KHC:5517
Court witnesses and bailiff says that plaintiff was there
along with him while serving the notice but he did not take
signature of the plaintiff and postman also says that he
heard the noise of children in the house but they did not
open the door and hence, he returned the same as 'door
lock'. The Trial Court having considered both oral and
documentary evidence placed on record comes to the
conclusion that not made out any sufficient cause to set
aside the judgment and decree and dismissed the same.
Hence, the present appeal is filed before this Court.
4. The main contention of the counsel for the
appellants that it was stage managed in the original suit as
well as execution petition. The counsel for the respondent
brought to notice of this Court when the judgment and
decree was passed on 27.09.2021, copy was applied on
the very next date that is on 28.09.2021 hence, the
appellants pleading is contrary to the certified copy since
copy was applied on the very next date of judgment and in
the pleading he stated that he came to know about the
NC: 2025:KHC:5517
judgment on 03.10.2021 and also while filing the petition,
it is stated that till date copy has not been obtained but
record discloses that copy was obtained prior to filing of
the execution petition and hence, false petition was filed.
The material discloses that in the cross-examination of
appellant also he admits that he came to know about the
filing of suit in the year 2020 and the said suit was
disposed of on 27.09.2021 and wife has been examined as
PW2 who categorically admits that registered post came in
the name of her husband and same was returned.
5. It has to be noted that the appellant counsel
filed an application under Order 41 Rule 27 of CPC before
this court relying upon two documents of loan transaction
between the appellants and respondent and one of the
document is dated 04.05.2018 and another document is
dated 24.06.2019 and in terms of the first loan
agreement, an amount of Rs.15,00,000/- was paid by the
respondent to the appellants and in terms of second
agreement, an amount of Rs.30,00,000/- was paid and no
NC: 2025:KHC:5517
action was taken in respect of the said loan transaction is
concerned for having made the payment and same is
shown as cash transaction in both the agreements and
these documents are not disputed by the respondent.
When such being the case, doubt creates in the mind of
the Court with regard to the very transaction is concerned,
Apart from that in the original suit, summons was served
but endorsement is that 'refused' and 'not claimed' and in
execution petition is also, the endorsement is that 'not
claimed'. Admittedly, notice was served on the petition
filed under Order IX Rule 13 of CPC and in ingenious
method, the respondent also filed an execution petition
having the knowledge about the petition filed under Order
IX Rule 13 of CPC and endorsement is that 'not claimed'
and thereafter, commissioner was appointed and sale deed
was obtained and possession is not yet taken in terms of
the decree. The counsel for the appellant salso brought to
notice of this Court that in the original suit, schedule was
not mentioned and in the execution petition, schedule was
mentioned and same was got amended in 2023. Having
NC: 2025:KHC:5517
taken note of these facts into consideration, this court is of
the opinion that the matter requires to be adjudicated on
merits. Hence, it is appropriate to set aside the dismissal
of the petition filed under Order IX Rule 13 of CPC having
taken note of the answer elicited from the mouth of
appellants as well as respondent wherein it is stated the
respondent having knowledge and obtained the sale deed
subsequent to the filing of miscellaneous petition filed
under Order IX Rule 13 of CPC, hence, it is appropriate to
allow the appeal and set aside the order dated
03.08.2024. The documents which have been filed before
this court under Order 41 Rule 27 of CPC is directed to
place the same before the Trial Court for consideration of
the matter on merit. Hence, permission is given to the
appellant to rely upon these documents before the Trial
Court as necessary for adjudication.
6. The counsel for the respondent would contend
that these two sale agreements are not in connection with
the said sale agreement and the same may be considered
NC: 2025:KHC:5517
during the course of the trial by the Trial Court whether
those are connected to the sale agreement or not. Both
the parties are given opportunity to substantiate their
contention before the Trial Court while considering the
matter on merits.
7. Having taken note of conduct of the appellants
that they have applied for certified copies on the very next
date of the judgment, appeal is allowed on cost of
Rs.50,000/- and same is payable by the appellants before
the Trial Court and out of that amount of Rs.50,000/-,
Rs.40,000/- is payable to the respondent/plaintiff and
remaining amount of Rs.10,000/- shall vest with the State.
8. Both the parties are directed to appear before
the Trial Court on 10.03.2025 without expecting any
notice from the Trial Court and the Trial Court is directed
to dispose of the matter within a time bound period of one
year. The appellants are directed to file written statement
within one month from 10.03.2025 and thereafter the Trial
NC: 2025:KHC:5517
Court consider the matter on merits within a time bound
period.
9. In view of the observation made in the order,
I.A. filed under Order 41 Rule 27 of CPC is disposed of and
permitted to produce the original documents before the
Trial Court for adjudication of the matter on merits.
Sd/-
(H.P.SANDESH)
JUDGE
SN
