Allowed

Sri S Basavaraj v. Smt Bharathi

Karnataka HC2 Nov 2023RFA/685/2007

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an Order XXIII Rule 1 application seeking withdrawal of a dismissed specific performance suit and re-filing after mortgage redemption. The court permitted respondents to defend in the fresh suit and reserved costs. The order is a Regular First Appeal outcome.

What did the court decide?

I.A.No.2/2023 under Order XXIII Rule 1 CPC read with Section 151 CPC dated 02.11.2023 allowed to withdraw suit and file fresh suit. No order as to costs.

Sri S Basavaraj Vs Smt Bharathi — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC:40439 RFA No. 685 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 685 OF 2007 (SP)

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BETWEEN:

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SRI.S.BASAVARAJ, SINCE DEAD BY LR'S,

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1(A). SMT.BHAGYA, W/O LATE S.BASAVARAJ, AGED ABOUT 35 YEARS,

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1(B). KUMARI. PUSHPA, D/O LATE S.BASAVARAJ, AGED ABOUT 19 YEARS,

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1(C). KUMAR. MADHAN, S/O LATE S. BASAVARAJ, AGED ABOUT 16 YEARS, SINCE MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SMT.BHAGYA.

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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APPELLANT NOS.1(A) TO 1(C) ARE THE RESIDENTS OF NO.21, SANTHOSHA NILAYA, 1ST STAGE, GRUHALAKSHMI LAYOUT, BASAVESHWARA NAGAR, BANGALORE - 560 079.

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…APPELLANTS

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(BY SRI.C.SHANKAR REDDY, ADVOCATE FOR LR'S OF APPELLANT)

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2 - NC: 2023:KHC:40439 RFA No. 685 of 2007

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AND:

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SMT.BHARATHI, W/O S.N.SRINIVASA REDDY, AGED ABOUT 37 YEARS,

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SRI.S.N.SRINIVASA REDDY, S/O NANJUNDA REDDY, AGED ABOUT 42 YEARS,

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BOTH ARE R/AT CHANNASANDRA VILLAGE, KADUGODI POST, BIDARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE.

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…RESPONDENTS

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(BY SRI.RAMESH KUMAR & K.S.NATARAJ, ADVOCATES C/R1 AND R2 AND ALSO VAKALAT FILED FOR R1 AND R2)

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THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED:06.12.2006 PASSED IN O.S.NO.463/2001 ON THE FILE OF THE I ADDL.CIVIL JUDGE (SR.DN.) BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.

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

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JUDGMENT

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After hearing for some time, learned counsel for the

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appellant filed an application under Order XXIII Rule 1 of CPC

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read with Section 151 of CPC. Application is supported by the

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affidavit signed by one of the legal representatives of appellant

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Smt.R.Bhagya.

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NC: 2023:KHC:40439 RFA No. 685 of 2007

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Perused the contents of the affidavit.

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A suit was filed by the appellant for specific

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performance in the Trial Court. Same came to be dismissed as there is mortgage of the suit property. Unless the mortgage gets redeemed in accordance with law, suit for specific performance for agreement to sell could not be decreed. As such, Trial Court dismissed the suit of the appellant.

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Present application is filed seeking to withdraw the suit for specific performance and represent the suit after the mortgage in respect of the suit properties, is properly discharged/redeemed.

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Since, suit of the plaintiff has been dismissed on the technical ground, a case is made out to withdraw the suit and file a fresh suit on the very same cause of action in accordance with law. Accordingly, the following:

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ORDER

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i. I.A.No.2/2023 filed under Order XXIII Rule 1 of CPC read with Section 151 of CPC dated

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02.11.2023 is hereby allowed.

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4 - NC: 2023:KHC:40439 RFA No. 685 of 2007

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ii. It is made clear that respondents who are absent before this Court, despite the services of Court notice, are entitled to canvass all possible defences to the fresh suit to be filed by the appellant in accordance with law, in the intended suit.

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iii. No order as to costs.

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Sd/JUDGE

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KAV

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List No.: 1 Sl No.: 43

Sri S Basavaraj v. Smt Bharathi

Case brief

What is this about?

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Sri S Basavaraj v. Smt Bharathi

Case brief

What is this about?

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