Partly allowed

N Shivakumar v. Shivananjegowda

Karnataka HC4 Dec 2021WP/19712/2021

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the High Court held that the executing Court failed to examine special circumstances justifying evasion of the decree. The Court granted opportunity to lead evidence on rival versions of the sale deed before deciding discharge.

What did the court decide?

Impugned order modified; I.A. No. 3 restored for consideration with opportunity to lead evidence on merits by February 2022.

N Shivakumar Vs Shivananjegowda — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2021

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BEFORE

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THE HON’BLE Mr. JUSTICE B.M. SHYAM PRASAD

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WRIT PETITION No. 19712/2021 (GM-CPC)

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BETWEEN : --------------

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N. Shivakumar Aged 47 years S/o. M.R. Nanjappa R/at. Mahadevarahalli Village Dudda Hobli Hassan Taluk – 573 118

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Working at N. Shivakumar Manager Reliance Life Insurance Co. Ltd., Kruthika Arcade H.N. Pura Road N.R. Circle Hassan – 573 201. … PETITIONER (By Sri. A. Ravishankar, Adv.)

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AND : -------

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Shivananjegowda Aged about 51 years S/o. Marirangegowda

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R/at. Arekallu Hosahalli Village Handinakere Dhakale Kasaba Hobli Hassan Taluk – 573 217. … RESPONDENT

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(By Sri. Vighneshwar S. Shastry, Adv.)

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This Writ Petition is filed under Article 227 of the Constitution of India with a prayer to quash the common orders dated 04.10.2021 passed by the Principal Senior Civil Judge and CJM, Hassan in Ex. No. 70/2020 Annexure – A and etc.

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This Writ Petition coming on for Preliminary Hearing this day, the Court passed the following;

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O R D E R

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Sri. A. Ravishankar and Sri. Vighneshwar S.

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Shastry, the learned counsel for the parties, are heard with their consent for final disposal. While Sri.A.Ravishankar, the learned counsel for the petitioner, submits that the petitioner’s applications I.A. Nos. 2 and 3 (which are applications filed under Section 151 and 47 of the Code of Civil Procedure,1908 for holding that the decree dated 07.11.2017 in a suit for specific performance by the respondent in O.S. No.

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57/2016 is discharged) could not have been rejected without an enquiry, Sri. Vighneshwar S. Shastry, the learned counsel for the respondent, submits that the executing Court, in the facts and circumstances of the case, has rightly decided on the petitioner’s applications without an enquiry. Therefore, the question for consideration is:

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Whether the executing Court could have decided the petitioner’s application I.A. Nos. 2 and 3 without holding an enquiry and without calling upon the parties to lead evidence .

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2). The facts and circumstances leading to this petition are stated thus:

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2.1 The respondent has filed the suit for in O.S. No. 57/2016 for specific performance asserting right to purchase a vacant site bearing No. 127 (katha No. 127) situated at #171, 2^nd Floor, 2^nd cross, Gowrikoppalu Main Road, Adichunchanagiri Road, Hassan [ the Subject

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property ) relying upon a registered sale agreement dated 28.04.2014. The petitioner has not contested the suit inasmuch as no evidence is let in his behalf and ultimately the suit is decreed on 07.11.2017. The decree is directing the petitioner to execute the sale deed for the subject property on receiving the balance sale consideration of Rs.2.00 lakhs (the total sale consideration is Rs.35.00 lakhs) and to handover the possession of the subject property to the respondent within two months from the date of this order;

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2.2 After about one and half years i.e., on 02.07.2018 the petitioner has executed the sale deed dated 02.07.2018 conveying the subject property in favour of the respondent but for a total sale consideration of Rs.85.00 lakhs acknowledging the receipt of Rs.33.00 lakhs as mentioned in the sale agreement dated 28.04.2014 as also the receipt of cash payment of Rs.2.00 lakhs on 02.07.2018 [the date of

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sale deed] and a further consideration of Rs.50.00 lakhs by way of cheque dated 29.06.2018.

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2.3 This sale deed dated 02.07.2018 refers not only to the aforementioned decree and its binding nature on the petitioner, but also refers to delivery of symbolic possession of the property describing the construction in the subject property. On 22.06.2020, the respondent has commenced the present proceedings in execution case No. 70/2020 for delivery of possession of the subject property describing it as a vacant site.

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2.4 In the meanwhile, the petitioner has also filed a suit in O.S. No. 139/2021 for declaration that the sale deed dated 02.07.2018 is null and void and for consequential reliefs on different grounds including the ground that the additional consideration has not been paid and this sale deed dated 02.07.2018 is executed as a security for a money transaction.

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2.5 In the execution case, the executing Court

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has issued delivery warrant which is returned by the Court Bailiff with the endorsement dated 08.10.2021 recording that he had been to the subject property with the respondent, and though the subject property is described as a vacant property in the warrant, the property comprises of construction with seven tenements occupied by others as well as the petitioner who have objected to the delivery and execution of the warrant and therefore he would need Police assistance.

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It is after this Bailiff’s report that the petitioner has filed these applications under Section 151 and 47 of CPC for dismissal of the execution petition and to hold that the decree dated 07.11.2017 is discharged adverting to the subsequent events which are recorded above. The executing Court has rejected the petitioner’s applications opining that the question of delivery of possession would be an incidental and

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ancillary jurisdiction necessary for effective enforcement of decree of delivery of possession consequent to a decree for specific performance and the Court, that has granted the decree for specific performance, would also be competent to direct delivery of possession.

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However it is seen that the executing Court has not examined the ramification of the subsequent events in the light of the petitioner’s case that even if the sale deed were to be accepted as asserted by the respondent, the decree stands discharged. Sri. A. Ravishankar, the learned counsel for the petitioner is categorical that insofar as petitioner’s grievance against the validity of the sale deed dated 02.07.2018, the same will have to be decided in the suit commenced by the petitioner in O.S. No. 139/2021, but he canvasses that it would be permissible to the petitioner to demonstrate in the execution proceedings that the execution of the sale deed dated 02.07.2018 is pursuant to a subsequent

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contract altering the original transaction which discharges the decree. Sri. A. Ravishankar asserts that this question could not have been decided without permitting the parties to lead evidence so that the Court could examine the question of discharge of decree in the light of the respective versions as regards the sale deed dated 02.07.2018.

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Sri. Vighneshwar S. Shastry, the learned counsel for the respondent, referring to undisputed fact that the petitioner did not participate in the proceedings in O.S. No. 57/2016, submits that the provisions of Order XXI of CPC are to ensure that there is enforcement of the decree without delay and frivolous and faudulent contentions are nipped at the first stage. He canvasses that the recitals of the sale deed show that the petitioner has accepted the decree, and in continuation of his obligation under the decree, he has executed the sale deed dated 02.07.2018. He relies

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upon the decision of this Court in the case of M/s. Vasanth Colour Laboratories Pvt. Ltd., Vs. Smt. Divya Devi, W.P. No. 46319/2015, which is decided on 22.01.2016, to contend that merely because a contract is asserted after the decree an enquiry need not be held, and he contends that this would be especially so when the contract is within the bounds of the decree.

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This Court must examine the rival submissions and the question that falls for

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consideration in the light of the decision of the Hon’ble Supreme Court in the case of Rahul S. Shah Vs.

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Jinendra Kumar Gandhi and others¹ , and insofar as an enquiry under Section 47 or Order XXI CPC, it has been held as follows:

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“42.10 The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of thirdparty claiming rights in a mechanical manner. Further, the Court should refrain from

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1 AIR 2021 SC 2161

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entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

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42. 11 The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits".

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This Court opines that while the caution is that notice must not be issued in a mechanical manner, but in exceptional and rare cases where the relevant questions such as discharge of the decree cannot be decided by resorting to expeditious methods, the executing Courts must allow taking of evidence and decide questions based on the evidence. But, expeditiously. This Court must therefore first consider whether the petitioner has established circumstances to prima facie indicate such special and rare circumstances.

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In the decree for specific performance, which includes the direction for delivery of possession, the subject property is admittedly described as a vacant site. The decree also states that the petitioner is directed to execute the sale deed and deliver vacant possession of the subject property on payment of Rs.2.00 lakhs within a period of two months. However, after lapse of one and half years the sale deed is obtained by the respondent from the petitioner on 02.07.2018 varying the consideration and also describing the property differently. The consideration as mentioned in the sale agreement is varied from a total sum of Rs.35.00 lakhs to 80.00 lakhs with payment of additional amount of Rs.50.00 lakhs. The property is described not as a vacant site but as a property with permanent construction with multiple floors and other details. The sale deed refers to symbolic delivery of possession of this constructed property and the execution case is filed in

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the month of June 2020, which is after almost two years, describing the subject property as a vacant site.

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Further, while there could be no doubt about the jurisdiction of the executing Court to deliver possession in enforcing a decree for specific performance, it would be necessary, in the facts and circumstances discussed, to decide whether the parties in executing the sale deed have brought about a contract which is out side the scope of the decree and if the decree is executed it would result in executing the decree beyond its term. This Court must opine that the petitioner, in relying upon the aforesaid circumstances, has prima facie established special circumstances justifying an enquiry and therefore, the executing Court should have held an enquiry with opportunity to the parties to lead evidence in support of their rival submissions.

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10. Insofar as the decision of this Court in W.P.

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No. 46319/2015, it can be distinguished on facts. In the case on hand in such writ petition this Court has opined that the subsequent agreement for renewal of landlord – tenancy relation was rooted in the compromise decree and therefore no fresh enquiry was required. Whereas in the present case, the parties have executed the sale deed after one and half years with varying the terms both as regards consideration and description of the property. Hence, the following;

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O R D E R

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I. The petition is allowed in part.

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II. The impugned order dated 04.10.2021 passed by the Principal Senior Civil Judge and CJM, Hassan in Ex.No. 70/2020 is modified.

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III. The petitioner’s application, viz., I.A. No. 3 under Section 47 of CPC is restored for consideration with reasonable opportunity to the parties to lead evidence on their behalf.

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IV. The civil Court shall complete the enquiry and decide on the merits of the petitioner’s application on or before the end of February, 2022.

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V. It would be needless to observe that this Court has not decided on the merits of the rival submissions.

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SD/JUDGE.

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LRS.

N Shivakumar v. Shivananjegowda

Case brief

What is this about?

What did the court decide?

N Shivakumar v. Shivananjegowda

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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