Sri. K. Narayana Reddy vs Sri. Rajanna. J
2025 Latest Caselaw 4110 Kant

Karnataka High Court

Sri. K. Narayana Reddy vs Sri. Rajanna. J on 18 February, 2025

Author: K.Natarajan

Bench: K.Natarajan

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                                                              NC: 2025:KHC:7349
                                                           MFA No. 5457 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 18TH DAY OF FEBRUARY, 2025

                                               BEFORE
                                THE HON'BLE MR JUSTICE K.NATARAJAN
                      MISCELLANEOUS FIRST APPEAL NO. 5457 OF 2023 (CPC-)


                      BETWEEN:

                            SRI. K. NARAYANA REDDY
                            S/O LATE KONAPPA REDDY,
                            AGED ABOUT 65 YEARS,
                            RESIDING AT NO.141/7/8,
                            4TH MAIN, 3RD PHASE,
                            KATHRIGUPPE MAIN ROAD,
                            BENGALURU - 560 085.
                                                                   ...APPELLANT
                      (BY SRI. V. B. SHIVAKUMAR, ADVOCATE)



                      AND:

                      1.    SRI. RAJANNA. J
Digitally signed by
VEDAVATHI A K               S/O LATE SRI. JANGAMAIAH,
Location: High
Court of Karnataka          AGED ABOUT 57 YEARS,
                            RESIDING AT NO.10,
                            GOPALKRISHNA LAYOUT,
                            SUBRAMANYAPURA POST,
                            BENGALURU - 560 061.

                            AND ALSO

                            SRI. RAJANNA J
                            WORKING AS
                            ASSISTANT EXECUTIVE ENGINEER
                           -2-
                                       NC: 2025:KHC:7349
                                    MFA No. 5457 of 2023




     MINOR IRRIGATION DEPARTMENT,
     HAVING OFFICE AT 5TH FLOOR,
     JAYANAGAR COMMERCIAL COMPLEX,
     BENGALURU - 560 004.

2.   SRI. B. V. MANJUNATH
     AGED ABOUT 42 YEARS
     S/O LATE VENKATAPPA
     R/AT NO.27, CHEEMASANDRA,
     VIRGONAGAR POST,
     BENGALURU - 560 049.

3.   SMT. K. SHILPA
     AGED ABOUT 46 YEARS,
     D/O H K KRISHNAPPA
     W/O SRI NAGARAJ
     R/AT NO.45/1
     NEAR KARTHIKEYA MAHAL,
     CHEEMASANDRA
     VIRGONAGAR POST,
     BENGALURU - 560 049.
                                         ...RESPONDENTS
(BY SRI. N. S. SHESHADRI, ADVOCATE FOR R2 & 3;
    R1-SERVED)

     THIS MFA IS FILED U/O 43 RULE 1(q) OF CPC, AGAINST
THE ORDER DATED:21.07.2023 PASSED ON IA NO.1 IN
OS.NO.3754/2022 ON THE FILE OF THE XLIV ADDITIONAL CITY
CIVIL JUDGE AND SESSIONS JUDGE, (CCH NO.27),
BENGALURU, C/c. XLIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY, DISMISSING IA NO.1
FILED U/O.38 RULE 5 OF CPC.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
                                -3-
                                              NC: 2025:KHC:7349
                                          MFA No. 5457 of 2023




CORAM:     HON'BLE MR JUSTICE K.NATARAJAN


                       ORAL JUDGMENT

This appeal is filed by the appellant/plaintiff as against

the order passed by the Trial Court under Order 38 Rule 5 of

CPC., for rejecting the prayer of the appellant for attaching the

property of the defendant in respect of Sy.No.74, measuring 1

acre 17 guntas, situated at Katamnallur village, Bidarahalli

Hobli, Bangalore East Taluk.

2. Heard the arguments of learned counsel for the

appellant and learned counsel for the respondent No.2 and 3.

The respondent No.1 served and unrepresented.

3. The case of the plaintiff before the Trial Court is

that the plaintiff filed the suit for recovery of Rs.72 lakhs from

the respondent No.1/defendant -Rajanna on the ground that

the plaintiff had lent loan of Rs.50 lakhs to the defendant No.1

for the purpose of construction of the apartment. And the

defendant agreed to repay the said amount by adding some

profit. Later the defendant said to be assured to give a flat

bearing No.407, for total sale consideration of Rs.29,13,000/-

to be adjusted towards the total outstanding dues as on that

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date and sought some time to repay the remaining balance

owed by the defendant but it was not paid. Later four cheques

were issued by the defendant, two cheques for Rs.20 lakhs and

another two cheques for Rs.15 lakhs, but when the said

cheques were presented, the cheques were returned unpaid

due to fund insufficient. The defendant also said to be

executed promissory note. Hence, the plaintiff filed the suit for

recovery of money from the defendant-Rajanna.

4. Along with the suit the appellant also filed I.A.No.1

under Order 38 Rule 5 of the CPC., for attachment of

application schedule property before the judgment. The Trial

Court by passing impugned order dismissed the application.

Hence, the appellant is before this court.

5. Learned counsel for the appellant has contended

that the Trial Court committed an error in dismissing the

application, even though the defendant claimed counter claim

and also re-covey the property which was already executed in

the name of the plaintiff and he also filed suit for specific

performance of contract for executing the sale deed in his

favour. The Trial Court considering the arguments of the

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learned counsel for the respondent, dismissed the application

mainly on the ground that the defendant has produced the

documents and also he is a business man, defendant have the

capacity to pay the money and therefore there is no need to

attach the property and also stated there is a counter claim by

the side of defendant. There is no need to attach the property.

Hence, the application is dismissed and feeling aggrieved by

the same the plaintiff/appellant filed appeal before this court.

6. However, the learned counsel for the appellant

argued the matter against the order passed by Trial Court.

During the pendency of the appeal this court granted interim

order by attaching the property measuring in Sy.No.74

measuring 1 acre 17 guntas by order dated 11.08.2023. Later

the respondent Nos.2 and 3 appeared before this court and

impleaded themselves as parties. It is contended by the

counsel that the defendant No.1- Rajanna is not at all owner of

the property which required to be attached. The respondent

Nos.2 and 3 are the owners, they purchased the property from

their owner Vijay Kumar and Vijay Kumar was purchased the

same from Krishnappa and in turn Krishnappa purchased the

same from Rajanna in the year 1993 itself. Thereafter, the very

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Rajanna executed the confirmation deed in favour of the

respondent Nos.2 and 3 on 28.03.2023 and the defendant-

Rajanna has already lost the property in the year 1983 itself

and there is no question of attaching the said property. If at all

any other property is available it can be requested the court for

attaching the same. Hence, prayed for vacating the interim

order.

7. Having heard the arguments and perused the

records, now the point that arises for my consideration is;

Whether the order of Trial Court call for interference for having rejected the attachment before the judgment?

8. On perusal of the records, admittedly the plaintiff

filed the suit for recovery of money of Rs.72 lakhs, based upon

the cheques issued by the defendant and also on demand

promissory note. The defendant also filed written statement

along with the counter claim under Order VIII Rule 6A of CPC.,

seeking re-conveyance of the sale deed in favour of the

defendant apart from Specific Performance of Contract, which

reveals there is a money transaction between the plaintiff and

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defendant. However, after arguments by the learned counsel

for the appellant this court granted injunction against the

property bearing Sy.No.74, measuring 1 acre 17 guntas said to

be belongs to the defendant. On perusal of the records

produced by the impleading applicants/ the respondents which

clearly reveals that the suit schedule property has already been

sold long back by the said defendant in the year 1983 itself.

Thereafter the purchaser -Krishnappa also said to be sold the

said property to one Vijay Kumar on 16.08.1990. Thereafter

the said Vijay Kumar also sold the said property to the present

respondent Nos.2 and 3 on 06.03.2023 by way of registered

sale deed and subsequently the confirmation deed also

executed by the very defendant -Rajanna by receiving Rs.80

lakhs from the present respondent Nos.2 and 3 by way of

cheques.

9. These documents clearly reveals the defendant -

Rajanna already lost the right, title and interest over the

property in the year 1983 itself. Thereafter, three sale deeds

have been effected subsequently, therefore question of

attaching the same property under the attachment before the

judgment cannot be allowed. Though the Trial Court has stated

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there is various sources for attaching property but no sources

produced by the defendant in the Trial Court. Such being the

case the Trial Court has committed an error in stating that the

defendant is disbursement there is other sources. However,

during the argument, the appellant counsel brought to the

notice that the defendant is a Government Servant working as

Assistant Executive Engineer, working in the Government

Department. Such being the case there is other modes

available to the appellant for seeking any attachment. Such

being the case, the order of the Trial Court though it is not

correct. However, I am of the view the land is already sold, it is

not vested with the defendant to attach the same. Therefore,

the order cannot be interfere except in respect of the said

schedule property.

Accordingly, the appeal is allowed in part.

The order of the Trial Court is hereby modified in respect

of attaching the property. However, the matter is remitted back

for fresh consideration, if any other source of property filed by

the appellant/plaintiff then the court can proceed to pass the

order.