Karnataka High Court
T B Chandrashekar vs H Mahadeva on 5 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JANUARY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.56153/2014(GM-CPC)
BETWEEN:
T. B. CHANDRASHEKAR,
S/O BELLIYAPPA,
AGED ABOUT 58 YEARS,
R/AT NO.174, K. C. LAYOUT,
LALITHAMAHAL ROAD,
MYSORE 570 001.
... PETITIONER
(BY SRI G. M. ANANDA, ADVOCATE)
AND:
1. H. MAHADEVA,
S/O HUCHEGOWDA,
MAJOR,
2. PREMA,
W/O H. MAHADEVA,
3. M. SANTHOSH,
S/O H. MAHADEVA,
MAJOR,
4. M. SANDESH,
S/O H. MAHADEVA,
MAJOR,
RESPONDENT NO.1 TO 4 ARE
R/O SHYADANAHALLI VILLAGE,
2
KASABA HOBLI, PANDAVAPURA TALUK,
NOW RESIDING AT,
BEHIND OLD POST OFFICE,
V. C. COLONY,
PANDAVAPURA TOWN & TALUK,
MANDYA DISTRICT 571 434.
5. NAGARAJU,
S/O KIKKERI MADE GOWDA,
MAJOR, NO.5, 1ST MAIN,
4TH CROSS, KUMBARAKOPPALU,
MYSORE CITY 570 001.
... RESPONDENTS
(BY SRI VINAY N., ADVOCATE FOR
SRI MANMOHAN P. N., ADVOCATE FOR R5;
R1 TO R4 ARE SERVED BUT UNREPRESENTED)
......
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 26.09.2014
PASSED BY THE SENIOR CIVIL JUDGE & J.M.F.C,
PANDAVAPURA, IN EX.No.58/2011 REJECTING THE
APPLICATION FILED BY THE PETITIONER UNDER ORDER
21 RULE 26 TO 29 R/W SECTION 151 OF THE CODE OF
CIVIL PROCEDURE, 1908 (IA-5), UNDER ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The plaintiff in O.S.No.88/2009 filed the present writ petition against the order dated 26.09.2014 made in Execution No.58/2011 on the file of the Senior Civil 3 Judge and JMFC, Pandavapura, rejecting I.A. No.5 filed by the applicant under Order XXI Rule 26 to 29 of Code of Civil Procedure.
2. It is the case of the petitioner that respondent Nos.1 to 4/defendants 1 to 4/judgment debtor Nos.1 to 4 are the owners of site No.74 bearing katha No.74, situated at Shyadanahalli, Kasaba Hobli, Pandavapura Taluk, Mysuru District, executed a agreement of sale dated 11.04.2007 in favour of the petitioner/plaintiff for a valuable consideration of `5,00,000/- and received Rs.4,75,000 as advance agreeing to execute a sale deed within two years, on receipt of balance sale consideration of `25,000/-. Inspite of repeated demand, respondents 1 to 4 did not execute the sale deed. Therefore, petitioner issued a legal notice dated 20.03.2009 and filed O.S.No. 88/2009 to enforce the agreement of sale dated 11.04.2007. It is further case of the petitioner that he also filed an application for 4 temporary injunction under Order XXXIX Rule 1 and 2 of Code of Civil Procedure praying to restrain the respondents from alienating the suit schedule property. The respondents, though filed written statement, did not file objections to the application.
3. The Trial Court, considering the application, by order dated 22.07.2009, extended the interim order granted earlier till disposal of the application and the said suit is still pending and the injunction granted by the Trial Court is still operating against the respondents. It is further case of the petitioner that the respondents seems to have executed an agreement of sale dated 31.10.2006 in favour of the respondent No.5 and subsequently, respondent No.5 also filed O.S.No. 90/2009 against respondent Nos.1 to 4 to enforce the said agreement and the said suit came to be decreed on 24.10.2010 in terms of the compromise entered into between the parties. It is stated by learned counsel for 5 respondent No.5 that in pursuance of the compromise decree in O.S.No.90/2009, though respondents 1 to 4 have agreed that they will execute the sale deed on or before 18.11.2009, they have not executed the sale deed. Therefore, respondent No.5 was forced to file execution No.58/2011.
4. During pendency of the Execution No.58/2011, the present petitioner filed an application under Order I Rule 10(2) of Code of Civil Procedure which came to be allowed and he was impleaded as a party to the execution proceeding. Thereafter, petitioner filed another application under Order XXI Rule 26 to 29 r/w Section 151 of Code of Civil Procedure to stay the execution proceeding till the disposal of the suit filed by him in O.S.No.88/2009. The said application was opposed by the 5th respondent. The executing Court, considering the application and objections, by the 6 impugned order, rejected the application. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri G.M.Ananda, learned counsel for the petitioner contended that the impugned order passed by the Trial Court rejecting the application I.A.No.5 filed by the petitioner under Order XXI Rule 26 to 29 r/w Section 151 of Code of Civil Procedure is erroneous and contrary to the material on record. He contended that, if further proceedings are not stayed and if ultimately the executing court implements the decree dated 24.10.2009, the suit filed by him against the respondents 1 to 4 in O.S.No.88/2009 will be frustrated and he will be put to great hardship, loss and damage. He further contended that since the rights of the parties in respect of immovable property are involved, the executing court ought to have stayed the further 7 proceedings till disposal of the suit filed by petitioner in O.S.No.88/2009. He further contended that respondent Nos.1 to 4 have played fraud on the petitioner by executing an agreement in favour of the 5th respondent on 31.10.2006 and subsequently, agreement in favour of the present petitioner on 11.04.2007. Therefore, in all fairness, the executing court ought to have allowed the application and stayed the proceeding. Therefore, sought to quash the impugned order by allowing the writ petition.
7. Per contra, Sri Vinay, learned counsel for Sri Manmohan.P.N. learned counsel for the respondent No.5, sought to justify the impugned order and contended that the 5th respondent is the first agreement holder executed on 31.10.2006. Since respondent Nos.1 to 4 did not come forward to execute the sale deed, 5th respondent filed O.S.No.90/2009 which came to be decreed on 24.10.2010. Therefore, the 5th 8 respondent filed execution proceedings for implementation of the decree. The present petitioner was not a party to O.S.No.90/2009 filed by the 5th respondent and 5th respondent was not impleaded in O.S.No.88/2009 as on the date of filing of the application. He contended that the suits were filed by the petitioner and 5th respondent are in different Courts. Therefore, the application filed by the petitioner to stay the Execution Petition No.58/2011 till disposal of O.S.No. 88/2009 is not maintainable and therefore, sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is a peculiar case where the respondents 1 to 4 are admittedly the owners of the suit schedule property in both O.S.Nos.88/2009 and 90/2009. Taking advantage of their ownership over the property, they executed agreement of sale dated 31.10.2006 in favour of the 5th respondent agreeing to sell the property for total 9 consideration of `5,50,000/- and received advance of `5 lakhs. Subsequently, they have not executed the sale deed. Therefore, 5th respondent filed suit in O.S.No.90/2009 for specific performance of the agreement. Very strangely, the vendors of the 5th respondent i.e., respondents 1 to 4 also executed an agreement of sale in favour of the petitioner, on 11.04.2007, subsequent to the agreement executed in favour of the 5th respondent, for a sum of `5 lakhs and received a sum of `4,75,000/- and agreed to execute sale deed by receiving the remaining amount within two years.
9. It is also not in dispute that inspite of the notice issued by the petitioner; respondents 1 to 4 have not executed the sale deed. Therefore, petitioner was forced to file O.S.No.88/2009 to enforce the specific performance against respondents 1 to 4. The Trial Court, considering the application filed by the petitioner 10 in O.S.No.88/2009 has granted temporary injunction restraining the defendants/ present respondents 1 to 4 not to alienate the suit schedule property till the disposal of the application. Admittedly, the injunction granted against the respondents 1 to 4 on 22.04.2009 is still in force. The respondent Nos.1 to 4 entered into compromise with respondent No.5 on 24.10.2009, in utter violation of the interim injunction granted in O.S.No.88/2009 on 22.04.2009. Of course, 5th respondent was not a party at that time. He may not be aware of the proceedings and injunction, but the fact remains that respondents 1 to 4 played fraud.
10. It is also not in dispute that in terms of the compromise entered into between the parties in O.S.No.90/2009 on 24.10.2010, though respondents 1 to 4 agreed to execute the sale deed on or before 18.11.2009, have failed to execute. Therefore, 5th respondent was forced to file execution No.58/2011 to 11 implement the decree. In the execution petition, the present petitioner also filed an application for impleadment. That application came to be allowed on 27.02.2013 and the said order has reached finality. It is also not in dispute that during pendency of the execution petition, the 5th respondent who is the decree holder in Execution No.58/2011 filed an application for impleadment in O.S.No.88/2009. That came to be allowed and the 5th respondent is also a party to O.S.No.58/2009 and admittedly, the said suit is still pending to enforce the agreement dated 11.04.2007.
11. The 5th respondent already got the decree in O.S.No.90/2009 on 24.10.2010 by entering into compromise with respondents 1 to 4 and filed execution petition to implement the decree. The petitioner who is also an agreement holder from respondents 1 to 4 in O.S.No.88/2009 got temporary injunction on 22.04.2009. Still the decree came to be executed in 12 terms of the compromise petition. Admittedly, respondent No.5 is a party to the execution petition. Both the matters are pending adjudication. Therefore, petitioner filed an application to stay further proceedings in Execution No.58/2011 till disposal of O.S.No.88/2009.
12. The Executing Court, considering the application and objections, while rejecting the application observed that, "a careful perusal of the present case on hand the decree holder has filed O.S.No.90/2009 against the JDR before the Civil Judge (Sr.Dn.) and JMFC, Pandavapura. In view of the compromise, decree holder has filed execution petition before the Civil Judge (Sr.Dn.) and JMFC, Pandavapura. Applicant in I.A.No.5 who is not a party to the original suit i.e., O.S.No.90/ 2009 and also in the present execution petition has filed O.S.No.88/2009 before the Civil Judge (Jr.Dn.) and JMFC, Pandavapura, against the JDR herein. When the 13 suit filed by the applicant before some other Court then the executing Court has no power and authority as well as a jurisdiction to stay all further proceedings in the present execution petition". Accordingly, rejected the application. While rejecting the application filed by the petitioner, the Court has not safeguarded the interest of the petitioner, in case if he succeeds in O.S.No.88/2009 pending between the parties. Now, all the respondents are parties to O.S.No.88/2009 and petitioner is also party to Execution Petition No.58/2011. Because of the tactics used by the respondents 1 to 4 for money on the guise of ownership, two purchasers are put in difficulty.
13. In view of the peculiar facts and circumstances of the case and taking into consideration the fact that the 5th respondent was the prior agreement holder and got decree on 24.10.2009, during operation of the injunction granted in O.S.No.88/2009 on 24.02.2009, it is suffice to observe that any further proceedings in 14 Execution No.58/2011 including the sale deed to be executed by respondents 1 to 4 in favour of the 5th respondent, is always subject to the result of O.S. No.88/2009, since 5th respondent is also party to O.S. No.88/2009 along with other respondents. Any decree to be passed in O.S.No.88/2009 will always binding on the parties.
14. In view of the peculiar facts and circumstances of the case, petitioner and respondents are at liberty to take appropriate action against respondents 1 to 4, in case they fail to succeed in their battle of litigation, in view of the fraud played by respondents 1 to 4 on both petitioner and respondents, in accordance with law. With the above observations writ petition is disposed of.
Sd/-
JUDGE kcm