Regular Second Appeal dismissed against an application under Order XXI Rule 97 CPC. Court held the appellant, a subsequent purchaser from a vendor under an injunction, had no locus standi. The appeal dismissed with exemplary costs.
Second Appeal dismissed with exemplary cost of Rs.1,00,000/-; interlocutory application for stay disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 476 OF 2023 (SP)
BETWEEN:
…APPELLANT (BY SRI. N. KUMAR, ADVOCATE)
AND:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
RESPONDENTS No.2 AND 3 ARE R/AT D.NO.170/2, SHREE NANDI FARM HOUSE,
RSA No. 476 of 2023
RAJEEVANAGAR, 2ND STAGE, MYSURU-570 019.
RESPONDENTS No.4 AND 5 ARE R/AT NO.185, 1ST STAGE, UDAYAGIRI, MYSURU-570 019.
…RESPONDENTS
(BY SRI. ABUBACKER SHAFI, ADVOCATE FOR C/R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.11.2022 PASSED IN RA.NO.324/2021 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 29.07.2021 PASSED ON I.A.IN EX.113/2016 ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES MYSURU, DISMISSING THE I.A., FILED UNDER ORDER XXI RULE 97 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for
Heard the learned counsel appearing for the appellant and the
learned counsel appearing for Caveator/respondent No.1.
RSA No. 476 of 2023
appellant/applicant before the Executing Court in Ex.No.113/2016 is that the applicant has purchased the land measuring 20 guntas in Sy.No.170/2 situated at Devanur Village, Kasaba Hobli, Mysuru Taluk through a registered Sale Deed dated 19.12.2006. After the purchase all the revenue records transferred to the name of the applicant and the RTC., extract also changed to his name and he is in enjoyment of the said property as an absolute owner without interference from anybody by paying all the necessary taxes to the concerned authority. The applicant applied for conversion of the said property before the Deputy Commissioner, Mysuru District, Mysuru and the same was approved through its order No.LLN.(1)C.R.55/2016-17 dated 31.01.2017. The decreeholder with his henchmen came near the property of applicant on 22.08.2017 at about 4:00 p.m, trespassed to the applicant’s property and demolished the cement slab compound wall constructed by him. The decree-holder has threatened the
RSA No. 476 of 2023
watchman of applicant who was in the spot by stating that he is the absolute owner of the property. The Decree-holder pushed the watchman, when he questioned the illegal acts of decreeholder and scolded him with filthy language and also threatened the applicant with bare consequences. The applicant has lodged a complaint before the Udayagiri Police Station along with photographs and also lodged a complaint before the Police Commissioner. He has also filed a private complaint before II Additional Civil Judge (Jr.Dn) & JMFC., Mysuru which is numbered as PCR No.2817/2017.
RSA No. 476 of 2023
original suit bearing O.S.No.55/2006 nor in appeal bearing RA.No.234/2013 and in R.S.A., before this Court.
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Deed before the Sub-Registrar, Mysuru. It is contended the said Nanjundegowda that within six months from the date of execution of sale agreement they should get permission from the Government as well as from M.U.D.A., Mysuru to sell the suit schedule property. After getting permission, said Nanjundegowda postponed to execute the Sale Deed in favour of Decree-holder by giving one or other reason. Hence, he has filed a suit, the same is numbered as O.S.No.55/2006 on 12.01.2006 and the same was decreed.
RSA No. 476 of 2023
appear before the Court nor adduced any evidence to show that he is a bona fide purchaser of the suit schedule property and as defendant No.5 has purchased the suit schedule property during the pendency of suit, as such the same is hit by Section 52 of the Transfer of Property Act.
objector/applicant filed his examination-in-chief on oath as AW.1 and got marked the documents as Exs.A1 to A9.
RSA No. 476 of 2023
Considering the material on record, dismissed the application with cost of Rs.1,000/-, the same is challenged in R.A.No.324/2021. The First Appellate Court on re-considering the material available on record came to the conclusion that the applicant has not made out any ground to invoke Order 21 Rule 97 of CPC., and considering the grounds urged in the appeal memo and evaluating the point raised, dismissed the appeal with cost of Rs.10,000/- and answered the point that it does not require any interference. Hence the present second appeal is filed before this Court.
RSA No. 476 of 2023
the Transfer of Property Act, he is also entitled for the relief for having invested the money and improved the property. Hence, this court has to admit the second appeal and frame the substantial question of law.
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change of name coming in the way of fruits of the decree. Hence, both the Trial Court as well as the First Appellate Court having taken note of the claim made by the appellant invoking under Order 21 Rule 97 of CPC came to the conclusion that no ground was made out. The First Appellate Court also in detail discussed the material on record and dismissed the appeal. Hence, no ground is made out to admit the appeal and frame substantial question of law.
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doubt, this applicant has filed an application by invoking Order 1 Rule 10 of CPC., in R.A.No.234/2013 claiming right and the same was also dismissed. The record also discloses that after the dismissal of the said application, an application was filed in Execution No.113/2016. The Trial Court having considered the claim made by the applicant and having considered the material available on record, taken note of the fact that the execution petition was filed by the decree-holder against the Judgment Debtor Nos.1 to 5.
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has produced the Sale Deed dated 17.06.2006 said to have been executed by Judgment – Debtor in favour of Fazrulla Shariff and the boundaries of the said property is the land bearing Sy.No.170/2 measuring 20 guntas. The said schedule clearly reveals that the property purchased by Fazrulla Shariff who is defendant No.6 in O.S.No.55/2006 and JudgmentDebtor No.5 in the present petition. Having taken note of the said material came to the conclusion that according to applicant the execution schedule property is different from the property purchased by the applicant Aslam Ahmed. But, it is admitted by the applicant Aslam Ahamed that he has purchased his application schedule property from Fazrulla Shariff on 19.12.2006. Having taken note of this admission and having considered the material on record, particularly, the document – Ex.A1, in which the applicant relies upon clearly discloses that Fazrulla Shariff, who is the vendor of the present applicant purchased the said property through registered Sale Deed dated 17.07.2006 from K. Nanjundegowda.
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Shariff is illegal and invalid and the said Judgment was confirmed by the District Court, Mysuru and also by this Court and the said Judgments had reached its finality. In spite of it, the very claim was made by filing an application under Order 21 Rule 97 of CPC. Hence, found that no ground is made out to entertain an application filed under Order 21 Rule 97 of CPC.
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available on record, on comparison of the schedule of the Sale Deed dated 19.12.2006 executed by one Sri Fazrulla Shariff in favour of Sri Aslam Ahmed is also one and the same. As concerned to the word “ºÉÆgÀvÀÄ¥Àr¹”, it was the submission of the learned counsel appearing for respondent No.1 that, only to mis-guide the registering authority the appellant herein has created and got registered the Sale Deed during the pendency of the suit as well as existence of interim order. It is also observed that when there was an interim order by the Trial Court in O.S.No.55/2006, Sale Deed is executed on 19.12.2006 marked at Ex.A2 is different with that of the schedule property. Hence, came to the conclusion that the said contention cannot be accepted.
RSA No. 476 of 2023
conclusion that the applicant invoking Order 21 Rule 97 of CPC cannot be sustainable in the eye of law.
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came into existence. When such being the case, the very contention of the learned counsel appearing for the appellant that he is a bonafide purchaser cannot be accepted. Merely because he has invested the money and got the property converted, cannot be a ground to claim any equitable relief and also having the knowledge of the Interim order, the sale was made in favour of the applicant knowing fully well that he had purchased the property when he cannot contend that he is a bonafide purchaser. Having taken note of all these material available on record, I do not find any ground to admit this appeal and no substantial question of law arises for consideration. The appeal is devoid of merits and no material is placed before this Court to invoke Section 100 of CPC., to admit and frame the substantial question of law. In view of abuse of process, this R.S.A., is liable to be dismissed.
ORDER
The appeal is dismissed with exemplary cost of Rs.1,00,000/-, the same is payable within one month. If the
RSA No. 476 of 2023
same is not paid within one month, the Registry and the respondents are having liberty to recover the same in accordance with law.
Out of that, an amount of Rs.75,000/- is to be payable to the first respondent and the remaining Rs.25,000/- shall vest with the State.
If the amount is not deposited, the Registry is directed to recover the same and the first respondent is also liable to recover the same in accordance with law.
In view of dismissal of the appeal, I.A.No.1/2023 for stay does not survive for consideration, the same stands disposed of.
Sd/JUDGE
CP List No.: 1 Sl No.: 55
3 issues framed by the court
Whether a subsequent purchaser who bought property during the pendency of a suit in violation of an interim injunction order can invoke Order 21 Rule 97 of CPC to interfere with the execution of the p
Whether the appellant qualifies as a bona fide purchaser entitled to equitable relief given his knowledge of the existing injunction and the vendor's prior litigation.
Whether the second appeal admits a substantial question of law under Section 100 of CPC requiring interference with the lower courts' finding of abuse of process.
3 provisions across 2 enactments
SRI. ASLAM AHAMED S/O LATE AZEEZ AHMED
SRI. ALTAF PASHA S/O LATE M.K.SHAIK PEER
SRI SHARATH KUMAR S/O K. NANJUNDEGOWDA
SRI BHARATH KUMAR S/O K NANJUNDEGOWDA
SRI ADNAN SHARIFF S/O LATE FAZLULLA SHARIFF
SRI AJLAN SHARIFF S/O LATE FAZLULLA SHARIFF
H.P.SANDESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
