Dismissed

Smt Gangamma v. Smt D Madhavi

Karnataka HC1 Dec 2022MFA/7023/2022

Case brief

AI extract

What is this about?

Appeal against an order dismissing an application for temporary injunction to restrain a defendant from alienating suit property during pendency of a specific performance suit. The High Court found the trial judge's view tenable as the agreement fixed a three-month period not contingent on court permission.

What did the court decide?

Appeal dismissed; Injunction Application No.1 also disposed of.

Smt Gangamma Vs Smt D Madhavi — Specific Performance | Karnataka HC (2022)

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MFA No. 7023 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO.7023 OF 2022 (CPC)

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BETWEEN:

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SMT. GANGAMMA, W/O LATE SANJEEVAIAH, AGED ABOUT 72 YEARS, R/AT BHEEMESHWARA NAGAR, MADHANAYAKANAHALLI VILLAGE, DASANAPURA HOBLI, BANGALORE - 562162.

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…APPELLANT

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(BY SRI. RAMESH KUMAR C., ADVOCATE)

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AND:

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SMT. D. MADHAVI W/O SUDHAKAR AGED ABOUT 47 YEARS

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SRI. D.A. JAYAWARDHAN S/O D. SUDHAKAR

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Digitally signed by AGED ABOUT 21 YEARS GURURAJ D Location: High Court Of Karnataka BOTH ARE R/AT NO.3-256-1

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BOTH ARE R/AT NO.3-256-1 BALAJI STREET, KADHARI TOWN, ANANTHAPURA DISTRICT, ANDHRA PRADESH - 515 591.

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…RESPONDENTS

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ WITH SECTION 104 OF THE CODE OF CIVIL PROCEDURE, 1908,

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MFA No. 7023 of 2022

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AGAINST THE ORDER DATED 23.09.2022 PASSED ON I.A.NO.1 IN O.S.NO.290/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA, REJECTING THE I.A.NO.1 FILED UNDER ORDER XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF THE CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging order dated 23.09.2022, passed by Senior Civil Judge, Nelamangala, in O.S. No.290/2020 on I.A. No.1 filed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908, this appeal is filed.

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Appellant herein was plaintiff. Respondents herein were defendants. Suit was filed for specific performance of agreement of sale dated 31.08.2016 etc. In said suit, I.A. No.I was filed under Order XXXIX Rules 1 and 2 of CPC., for restraining defendant No.2 from alienating suit schedule property.

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On service of summons, defendants filed written

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statement and adopted same as objections to application in I.A. No.1.

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MFA No. 7023 of 2022

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On consideration, Trial Court passed impugned

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order dismissing application. Challenging same, plaintiff is in appeal.

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Sri Ramesh Kumar, learned counsel for plaintiff - appellant submitted that impugned order passed by Trial Court was contrary to recognized principles of law regarding injunction. It was submitted that defendant No.1 had filed petition in G and W.C. No.14/2019 seeking permission for sale of suit property by referring to agreement of sale in favour of plaintiff and same, however, came to be dismissed for nonprosecution. Upon defendant No.2 attaining age of majority, plaintiff had issued legal notice on 29.06.2020 calling upon defendants to perform their part of contract and thereafter filed suit.

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Only reason stated by Trial Court was that plaintiff

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had not offered to pay balance consideration within three months as per agreement.

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Heard learned counsel for appellant and perused impugned judgment and award.

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MFA No. 7023 of 2022

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Point that arises for consideration is:

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"Whether impugned order passed by Trial Court requires interference in this appeal?"

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At outset, interference with discretionary orders passed under Order XXXIX Rules 1 and 2 of CPC., in appeal under Order XLIII would be very limited. Hon'ble Supreme Court in Mohd. Mehtab Khan and ors v. Khushnuma

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Imbrahim Khan and ors [2013(9) SCC 221] has stated that there cannot be interference unless impugned order is untenable and even if view taken by Trial Court is one of possible views, there cannot be any interference.

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On examination of above submissions, it is seen that period for conclusion of an agreement of sale was fixed as three months, within which plaintiff was required to pay balance consideration and call upon defendants to come forward to execute sale deed.

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Filing of application for permission from Court under the Guardians and Wards Act, 1890 and obtaining same within three months was not one of conditions of agreement of sale.

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MFA No. 7023 of 2022

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In any case, application so filed in year 2019 is stated to have since been dismissed.

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Whether there was any understanding or agreement between parties for extension of time for obtaining permission has to be established only during trial. Under circumstances, view taken by Trial Court cannot be faulted with.

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Hence, point for consideration is answered in

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negative. Consequently, I pass following:

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ORDER

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Appeal is dismissed.

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In view of disposal of main appeal, I.A No.1/2022 for stay does not survive for consideration, hence, it also stands disposed of.

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Sd/JUDGE

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sma List No.: 1 Sl No.: 38

Smt Gangamma v. Smt D Madhavi

Case brief

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Smt Gangamma v. Smt D Madhavi

Case brief

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