Allowed

Smt Nethra Narayan v. Sri N J Murthy

Karnataka HC7 Mar 2024MFA/427/2022

Case brief

AI extract

What is this about?

This miscellaneous second appeal challenged the rejection of an application for attachment before judgment. The High Court set aside the impugned order, holding that the Trial Court erred in refusing to consider medical evidence suggesting the appellant's incapacity when the disputed release deed was executed prior to his death.

What did the court decide?

The impugned order dated 08.10.2021 was set aside, and the application for attachment before judgment under Order 38 Rule 5 CPC was allowed with the relief sought granted.

Smt Nethra Narayan Vs Sri N J Murthy — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A. NO.427/2022 (CPC)

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BETWEEN:

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1 . SMT. NETHRA NARAYAN W/O.LATE N.J.LAKSHMI NARAYAN, AGED ABOUT 37 YEARS,

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2 . ANJU L. NARAYAN D/O LATE N.J.LAKSHMI NARAYAN, AGED ABOUT 13 YEARS,

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3 . SANJU L. NARAYAN D/O LATE N.J.LAKSHMI NARAYAN, AGED ABOUT 07 YEARS,

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APPELLANTS 2 AND 3 ARE MINORS, AND ARE REPRESENTED BY THEIR NEXT FRIEND I.E., THEIR MOTHER AND NATURAL GURADIAN SMT. NETHRA NARAYAN, THE APPELLANT NO.1 ALL R/AT NO.1104, 2ND CROSS, SAKAMMA HANUAMNTHAPPA LAYOUT, NEAR AMBEDKAR MEDICAL COLLEGE, KAVAL BYRASANDRA, BENGALURU-560032.

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… APPELLANTS

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(BY SRI A.MADHUSUDHANA RAO, ADVOCATE)

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AND:

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1 . SRI N.J. MURTHY S/O N.A. JAYARAMAIAH, AGED ABOUT 51 YEARS, R/AT 8/89, SHANTIVILAS, 5TH CROSS, S.H.LAYOUT, KAVAL BYRASANDRA, R.T.NAGAR POST, BENGALURU-560032.

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2 . M/S. MEVANIR SYSTEMS PVT. LTD., HAVING THEIR REGD OFFICE AT BEECH , SECOND FLOOR, MANYATHA EMBASSY BUSINESS PARK, OUTER RING ROAD, (HEBBAL), BANGALORE-560045. REP. BY ITS MANAGING DIRECTOR.

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… RESPONDENTS

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(BY SRI ABHINAV R., ADVOCATE C/R1 [NOTICE NOT ORDRED IN R/O R2])

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THIS M.F.A. IS FILED U/O.43 RULE 1(q) R/W SECTION 151 OF CPC, AGAINST THE ORDER DT.08.10.2021 PASSED IN O.S.NO.3944/2020 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, DISMISSING IA FILED U/O.38 RULE5 OF CPC.

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THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.02.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel for the appellants/plaintiffs and

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learned counsel for the caveator-respondent No.1/defendant No.1.

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This miscellaneous second appeal is filed challenging

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the rejection of application filed under Order 38 Rule 5 of CPC filed by the plaintiffs in O.S.No.3944/2020 dated 08.10.2021 on the file of the XXVII Additional City Civil Judge at Bengaluru City.

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The factual matrix of the case of the plaintiffs before

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the Trial Court in a suit for declaration is that the release deed executed by the defendant No.1 from the husband of the first plaintiff in respect of the schedule property is illegal, void and not binding. The plaintiffs also filed the suit for recovery of money and also sought for a direction the defendant No.1 to pay a sum of Rs.92,82,109.75/- being the rent which she has received from defendant No.1 in respect of share of late N.J. Lakshminarayana, who is the husband of the first plaintiff. It

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is the main contention in the suit that the defendant No.1 is the

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brother of the husband of the first plaintiff and her husband passed away on 13.10.2019 leaving behind the plaintiffs. It is contended that late N.J. Lakshminarayana was running a retail outlet of petroleum products i.e., the petrol and diesel, as the dealer of M/s. Indian Oil Corporation in the name and style M/s. Jai Hanuman Service Station as its sole proprietor. In this regard, a dealership agreement was entered into between late N.J. Lakshminarayana and M/s. Indian Oil Corporation on 27.05.2004. After the death of the husband of the first plaintiff, the first plaintiff made a request to M/s. Indian Oil Corporation to permit her to continue the business of M/s. Jai Hanuman Service Station as its Proprietrix. However, in view of the fact that presently first plaintiff is the Corporator of BBMP, she has been advised to constitute a partnership concern consisting of her minor daughters as its partners and submit the application for continuing the said partnership as the dealer of M/s. Indian Oil Corporation.

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It is contended that the defendant No.1 is the elder brother of the husband of the first plaintiff late

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N.J. Lakshminarayana. The defendant No.1 is holding a senior position in the Police Department of the Government of Karnataka and as of now, he is working as Deputy Commandant. Being the elder brother of late N.J. Lakshminarayana, the husband of the first plaintiff was wielding lot of influence on the husband of the first plaintiff. The husband of the first plaintiff was also having high respect towards the defendant No.1, in view of the fact that he was his elder brother and is also holding a good position in the Police Department. The defendant No.1 was having a dominating influence on late N.J. Lakshminarayana, the husband of the first plaintiff and he was also interfering in the business activities of the husband of the first plaintiff relating to the service station (petrol bunk) and also the MRP Liquor Shop which was being run in the name of Golisoda Wines and the license in respect of the said shop was standing in the name of late husband of the first plaintiff and after the death of her husband, it is the first plaintiff, who is having said license in her name and is carrying on the said business.

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It is also contended that during the life time of the husband of the first plaintiff, he along with defendant No.1 were the joint owners of the Industrial Unit measuring 21,500 sq.ft. in the eighth floor of the Industrial building called Green Heart, situated in Phase IV, forming part and parcel of M Far – Manyata Technology Park, Nagawara, Bangalore along with 27 covered car parking spaces and with an undivided share of 6,615 sq.ft. in the land in Sy.No.114/2 and others situated at Nagawara Village, Kasaba Hobli, Bangalore North Taluk and the same was acquired by late husband of the first plaintiff along with defendant No.1 under a registered sale deed dated 24.03.2016. The said property which was the joint holding of late N.J. Lakshminarayana and defendant No.1 is morefully described in the schedule ‘A’ to ‘C’.

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It is further contended that after purchasing the schedule ‘A’ property along with the undivided share in the land in schedule ‘A’ property, the husband of the first plaintiff along with defendant No.1 had executed a registered lease deed dated 16.05.2016 in favour of one M/s. SLK Software Services Pvt. Ltd.

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in respect of super built up area measuring 89,378 sq.ft. along with M/s. Manyata Promoters Pvt. Ltd. and M/s. Manyata Projects Pvt. Ltd. M/s. Manyata Promoters Pvt. Ltd. were the owners of 56,529 sq.ft. super built up area and M/s. Manyata Projects Pvt. Ltd., the developers of the project had retained 11,349 sq.ft. and the husband of the first plaintiff and defendant No.1 were the owners of the remaining extent of 21,500 sq.ft. and the registered lease deed dated 16.05.2016 is also produced.

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Subsequently, as the aforesaid lessee vacated the premises, late husband of the first plaintiff along with defendant No.1 has entered into fresh registered lease deed dated 30.05.2018 in respect of suit schedule ‘C’ property and the proportionate undivided share and the car parks in favour of defendant No.1. The registered lease deed was executed along with other owners of the remaining extent of lease hold property. As per the terms of the said registered lease deed, the husband of the first plaintiff and defendant No.1 are entitled to receive a sum of Rs.16,55,500/- per month towards their super

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built up area of 21,500 sq.ft. and a sum of Rs.1,45,000/- per month towards car parking rent.

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It is contended that the husband of the first plaintiff late N.J. Lakshminarayana was not a highly educated person and had only studied up to Diploma in Electronics and he was being guided largely by defendant No.1 in his day to day activities. It is contended that thereafter late N.J. Lakshminarayana started taking liquor and right from the year 2016, he was being under treatment for the ailments relating to the liver and he was being treated by Dr. Dinesh Kini, a Gastroenterologist attached to Sakra Hospital and he was visiting Kini’s Gastro Clinic which was being run by the said Doctor. It is contended that over a period, late N.J. Lakshminarayana became addicted to alcohol and he was admitted to Sakra World Hospital during 06.08.2018 to 10.08.2018 with history of jaundice and his both the legs were swollen. Even thereafter, late N.J. Lakshminarayana was visiting Dr. Dinesh Kini and he was advised for getting admitted for a deaddiction programme in St. John’s Hospital from 20.08.2018 to 31.08.2018 which indicates the said fact.

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It is further contended that when late N.J. Lakshminarayana was again admitted to Sakra World Hospital during 29.12.2018 to 11.01.2019 and he was also diagnosed as suffering from Hepatic Encephelopathy which is a neuropsychiatric disorder arising out of liver disfunction. During this period, defendant No.1 was giving an impression to the first plaintiff that he is taking care of the medical requirements of late N.J. Lakshminarayana and he was accompanying late N.J. Lakshminarayana, whenever he was going out, including the visits to the Doctor. The first plaintiff, who is taking care of second and third plaintiffs, who are her minor daughters were also depending upon defendant No.1 and she bonafide believed that defendant No.1 is helping her and her husband. After the death of her husband, it was very shocking and surprising to her that the bank operations of Jai Hanuman Service Station were being carried on with State Bank of India by defendant No.1 by creating the documents and defendant No.1 has operated the accounts even after the death of her husband late N.J. Lakshminarayana and on enquiry, she came to know that an amount of Rs.92,82,109.75/- were not credited to the over draft

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account or to the current account for the period from 15.11.2019 to 31.12.2019.

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It is also contended that defendant No.1 was

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claiming that he is managing the affairs of the service station during the said period, has deliberately misappropriated a sum of Rs.92,82,109.75/-. Hence, he is liable to pay the said amount. It is also contended that the defendant No.1 got created the document of release deed without any consideration and he is collecting rent from the tenants. Hence, filed the suit for recovery of money of Rs.92,82,109.75/- and to declare that the registered release deed dated 19.09.2018 as illegal, void and not binding on the plaintiffs and for a mandatory injunction for cancellation of the release deed and also sought for the release of the amount in a sum of Rs.1,96,05,627/- being the rents which he as received from defendant No.2 in respect of the share of her husband late N.J. Lakshminarayana and further sought for an order of mandatory injunction directing defendant No.2 to continue to pay the plaintiffs, the rents payable in respect of the half share of late N.J. Lakshminarayana in the suit

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schedule property and also seeking the relief of permanent injunction restraining the defendant No.1 from dealing with the half undivided share of the plaintiffs in the suit schedule property. The plaintiffs also inter-alia sought for the relief of attachment of the rent, as reiterated in the averments of the plaint.

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The defendant No.1 appeared and filed the written statement contending that the very application is misconceived and attachment sought in relation to half share of the suit ‘C’ schedule property cannot be granted. The plaintiffs have presumed that they have got half share in the suit schedule property and the suit filed for the declaration and other allied relief's cannot be granted. It is contended that the plaintiffs have not made out semblance of the case much less a prima facie case. The power of the Court to pass an order of attachment before judgment is an extraordinary power. The Courts can make such order, if it is satisfied that the party against whom it is sought to be made is likely to dispose of his property or remove from the local jurisdiction of the Court and

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no such effort has been made and hence, the question of granting any attachment does not arise. It is contended that simple mention of an apprehension is not sufficient and simple reproduction of the language employed in Order 38 Rule 5 will be insufficient and plaintiffs are attempting to convert an illusory claim which is not even an unsecured debt into secured debt. It is also contended that the first plaintiff is a Corporator of BBMP and she is an influential lady with much political connection and there were no issues during the life time of the husband of the first plaintiff and the husband of the first plaintiff did not challenge the very execution of the release deed and he did not make any claims to the rents that were being received from the plaint ‘C’ schedule property. After the death of late N.J. Lakshminarayana on 13.10.2019, the relationship between the plaintiffs and the defendants sourced. The first plaintiff using grievous ingenious methods, started laying claims over the properties in which she had no semblance of right. Late N.J. Lakshminarayana was running a liquor business under the name and style as Golisoda Wines. The said business was running Rs.10 lakhs per month. Apart from the said business, the first

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plaintiff was also running the family business of retail vending of petroleum products under the name and style Jai Hanuman Service Station.

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It is contended that the plaintiffs have now fabricated the story contending that the first defendant has forged the signature of late N.J. Lakshminarayana as regards the authorization letter. On the basis of said authorization letter, the plaintiffs have made an imaginary claim of Rs.92,82,109.75/- in the suit. The plaintiffs have not produced any documents indicating that the first defendant either withdraw the amount as contemplated by the plaintiff, nor there is documents to show that the defendant No.1 has transferred the same amount to his

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bank accounts. The plaintiff has produced the copy of the statement of accounts; it does not show any withdrawal from the side of the defendants. There is no explanation how such huge amount came to be drawn in the averments made in the plaint. The allegation is nothing but a guesswork without any basis. It is clear that the first plaintiff is misusing her powers as the Corporator and using the present suit for threatening the

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defendant No.1 to settle the suit claim. It is contended that some arbitrary figures have been shown and no reliance can be placed on the document No.14. It is further contended that plaintiffs have also filed an application restraining the defendants from alienating the suit schedule property with respect to the half share of the schedule ‘B’ and ‘C’ properties and already injunction has been granted and now, they cannot claim any relief of attachment.

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The Trial Court, having taken note of the pleadings of the parties, formulated the point whether the plaintiffs have made out a prima facie case, in order to grant an order of attachment before judgment with respect to the rents payable by the defendant No.2 to defendant No.1 in respect of his half share in the suit ‘C’ schedule property.

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The Trial Court, having considered both oral and documentary evidence placed on record, comes to the conclusion that the plaintiff has not made out a prima facie case, since there is already a document of release deed and the matter requires trial and the same would be considered only after full-

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fledged trial and not at this stage. The Trial Court also comes to the conclusion that already this Court has granted an interim order of injunction against the defendants from alienating, encumbering half share in the schedule ‘B’ and ‘C’ properties. Being aggrieved by the said order of rejection of application filed under Order 38 Rule 5 of CPC, the present miscellaneous first appeal is filed.

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Learned counsel for the appellants in his argument would vehemently contend that there is no dispute with regard to the fact that the husband of the first plaintiff and the defendant No.1 are brothers. It is also not in dispute that both of them have jointly purchased the schedule ‘C’ property. It is contended that husband of the first plaintiff was addicted to alcohol and the defendant No.1 obtained the release deed without any consideration. It is also the contention of the learned counsel for the plaintiffs that defendant No.1 has misappropriated the amount of the petrol bunk and contend that cheques have been drawn even after his death. Learned counsel also brought to notice of this Court the authorization letter dated

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11.10.2019 and contend that the same is obtained when he was in ventilation and document Nos.10 to 12 clearly disclose the same. It is contended that when the release deed was obtained on 19.09.2018, the husband of the first plaintiff was taking treatment even prior to that and nothing is mentioned in the order with regard to the fact that he was taking treatment for de-addiction and the documents are produced before the Trial Court and those documents are ignored by the Trial Court while passing an order and attachment is sought only for half share of rent and not in respect of the property. Hence, the Trial Court committed an error in passing such an order.

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Learned counsel for the appellants/plaintiffs, in support of his argument, relied upon the judgment of the Apex Court in RAJENDRAN AND OTHERS VS. SHANKAR SUNDARAM AND OTHERS reported in (2008) 2 SCC 724, wherein the Apex Court has held that the Court while invoking Order 38 Rule 5 of CPC is required to form a prima facie opinion at that stage, it need not go into the correctness or otherwise of all the contentions raised by the parties.

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Per contra, learned counsel for the caveator-

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respondent No.1 would submit that the release deed was executed in 2018 and the same is stated in Para No.16 of the plaint. It is contended that Jai Hanuman Service Station was run by their father and suit is filed only to exert the remedy. It is also contended that the first plaintiff is the Corporator and the counsel also brought to notice of this Court newspaper report and contend that FIR was registered and two months after the registration of the FIR, suit was filed. The counsel also brought to notice of this Court that the father of husband of the first plaintiff and defendant No.1 also filed the complaint and release deed is executed in 2018 and the husband of the first plaintiff died after one year of execution of release deed and statement of account does not disclose anything about misappropriation. It is also contended that suit is filed for the partition in O.S.No.6138/2020 and the said late N.J. Lakshminarayana has

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not raised the said dispute during his life time. The counsel also submit that already interest of the plaintiffs is protected by passing an order of injunction and the question of granting any order of attachment does not arise.

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Learned counsel for the caveator-respondent No.1, in support of his argument, relied upon the judgment in RAMAN TECH & PROCESS ENGG. CO. AND ANOTHER VS. SOLANKI

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TRADERS reported in (2008) 2 SCC 302 , wherein the Apex Court has observed that the plaintiff to avail the benefit need to show, prima facie, that his claim is bona fide and valid and also satisfy the Court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him.

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The counsel also relied upon the judgment of this Court in KRISHNAPPA VS. SMT. K.N. SRIDEVI reported in ILR 2012 KAR 3328 , wherein this Court has held that the purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the said provisions as a leverage for coercing the defendant to settle the suit claim should be discouraged.

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The counsel also relied upon the judgment of the Apex Court in CHANDRIKA PRASHAD SINGH AND OTHERS

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VS. HIRA LAL AND OTHERS reported in 1923 SCC ONLINE

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PAT 89 and brought to notice of this Court Para Nos.6 and 7 of the judgment with regard to believing the case of the parties and exercising the power under Order 38 Rule 5 of CPC.

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In reply to the arguments of the learned counsel for caveator-respondent No.1, learned counsel for the appellants brought to notice of this Court that the authorization letter was obtained when he was in ventilation and cash receipt has not been deposited. Hence, suit is filed for recovery of an amount of Rs.92,82,109.75/- and the income declared is not in consonance with the same. It is also contended that attachment is in respect of money i.e., rentals which have been received by defendant No.1 from defendant No.2. The counsel also would submit that the property under release deed is worth almost Rs.13 Crores and 50% of the same would come to Rs.6.5 Crores and the same is also without any consideration and lease deed is executed jointly in respect of the said property by both the defendant No.1 and the husband of the first plaintiff. When such

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being the case, all these aspects have not been considered by the Trial Court.

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In reply to the reply argument of the learned counsel for the appellants, the learned counsel for the caveatorrespondent No.1 would submit that the father of the husband of the first plaintiff and defendant No.1 also signed the said release deed and hence, the question of any suppression does not arise.

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Having heard the learned counsel for the appellants

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and learned counsel for the caveator-respondent No.1 and also considering the material available on record, it is not in dispute that both the husband of the first plaintiff and the defendant No.1 had purchased the schedule ‘C’ property and the document of sale deed disclose that the same was purchased in the year 2016. The documents which have been relied upon by the learned counsel for the appellants and learned counsel for the caveator-respondent No.1 is not in dispute with regard to the execution of the lease deed in favour of the tenant and the only contention is that husband of the first plaintiff was addicted to alcohol and therefore, he was admitted to de-addiction centre

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and defendant No.1 misappropriated the amount. The fact that the husband of the first plaintiff died in the hospital is not in dispute.

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The main contention of the learned counsel for the appellants by producing the document Nos.10 to 12 is that the document of authorization was obtained by the defendant No.1 on 11.10.2019 to draw the money when he was in the hospital at that time is also not in dispute, since document No.8 disclose the earlier admission of the husband of the first plaintiff in the year 2018 when he was under treatment at Sakra World Hospital. The document of release deed is dated 19.09.2018 and other document i.e., document No.10 disclose that he was in the hospital from 29.12.2018 to 11.01.2019 and the letter was addressed to the Bank Manager on 11.10.2019, wherein account details are mentioned and a request was made to consider all the cheques/letters/documents to be signed by his brother on his behalf as Proprietor of Jai Hanuman Service Station. The document No.12 is also clear that late N.J. Lakshminarayana passed away on 13.10.2019.

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It is also important to note that document No.13

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clearly disclose that on 10.10.2019, 11.10.2019 and 12.10.2019, he was in ventilation. It is also the case of the plaintiffs that an amount of Rs.92,82,109.75/- was misappropriated during the said period, as per the document No.14 and the plaintiff also claimed half of rent in a sum of Rs.92,82,109.75/-. The document No.16 is the account extract for the period from 01.10.2019 to 14.02.2020. The counsel also brought to notice of this Court some of the documents relating to transfer of amount. When such averment is made and in the plaint also it is specifically pleaded with regard to the same, the documents which have been placed before the Trial Court is very clear with regard to the condition of the husband of the first plaintiff. No doubt, in the written statement the defendant No.1 denied the allegations made in the plaint, particularly in Para No.6 and the suit is filed for recovery of money and also sought for the relief of declaration that release deed as null, void and illegal. It has to be noted that the documents are produced with regard to the health condition of her husband i.e., document Nos.9 to 13, as he was under continuous treatment even prior to execution of

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the alleged release deed and no dispute with regard to the fact that there was a release deed and the fact that very particular property was purchased in the joint names of the husband of the first plaintiff and defendant No.1 in the year 2016 is not in dispute.

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It has to be noted that there is no dispute with

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regard to the fact that husband of the first plaintiff and defendant No.1 had executed the lease deed in favour of the tenant and were getting the rent jointly is also not in dispute. The only dispute is with regard to the execution of the release deed. It is the specific allegation that the defendant No.1 was taking care of health of his brother and the document of authorization was obtained when he was in ventilation. The document No.8 is very clear that even prior to release deed, he took treatment at Sakra World Hospital and he was inpatient from 06.08.2018 to 10.08.2018. I have already pointed out that the said document is prior to execution of the release deed and once again, he was admitted to hospital for chronic liver disease from 29.12.2018 to 11.01.2019. The document No.11 i.e., letter

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dated 11.10.2019 is very clear that letter was addressed to the Bank Manager, State Bank of India and on that date, he was in ventilation as per the hospital records. The main dispute is that it is a created document and the defendant No.1 got transferred

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the amount to his account and even after the death of his brother also, he had drawn the money.

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When such prima facie material is placed before the Court, the Trial Court ought to have considered the same and the Trial Court comes to the conclusion that already there is a release deed and the validity of the release deed has to be decided by the Court and until the validity of the released deed is decided by the Court, the right of the plaintiffs over the suit ‘C’ schedule property cannot be inferred, is an erroneous approach. Though the first plaintiff prima facie has produced the documents pertaining to health condition of her husband, even prior to execution of the release deed, the Trial Court ought to have taken note of the fact that both the defendant No.1 and the husband of the first plaintiff have purchased the property jointly in the year 2016 itself and thereafter, entered into a lease deed

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in favour of the tenant jointly and this document of lease deed is challenged placing the material on record that his health condition had deteriorated and he was addicted to alcohol and he was having chronic liver disease and was admitted to hospital for de-addiction. When such circumstances have been pleaded before the Trial Court by producing documents, the same have not been considered by the Trial Court.

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Learned counsel for the appellants/plaintiffs also rightly brought to notice of this Court that though sufficient materials are placed before the Court with regard to the health condition of the husband of the first plaintiff with regard to his treatment, nothing is discussed with regard to he being admitted to de-addiction centre as well as the fact that he was taking treatment and these materials have not been considered by the Trial Court while passing an order on the application filed under Order 38 Rule 5 of CPC and ignored the medical records as contended by the learned counsel for the appellants. These are the factors which clearly disclose prima facie case of the plaintiffs. The judgment of the Apex Court referred by the

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learned counsel for the appellant is also clear that while invoking Order 38 Rule 5 CPC is required to form a prima facie opinion at that stage, it need not go into the correctness or otherwise of all the contentions raised by the parties.

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No doubt, learned counsel for the caveatorrespondent No.1 also relied upon the judgment of the Apex Court in RAMAN TECH & PROCESS ENGG. CO. ’s case, in the said judgment, the Apex Court has held that the plaintiff to avail the benefit need to show, prima facie, that his claim is bona fide and valid and also satisfy the Court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him. The counsel also brought to notice of this Court Para Nos.5 and 6 of the said judgment, wherein it is discussed with regard to scope of Order 38 Rule 5 of CPC. In the case on hand, this Court has already taken note of the medical records of the husband of the first plaintiff and also the circumstances under which the release deed came into existence and operation of the account of the

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husband of the first plaintiff by the defendant No.1, when he was in ventilation and the said judgment is not applicable to the facts of the case on hand.

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In the judgment in KRISHNAPPA’s case relied upon by the learned counsel for the caveator-respondent No.1, this Court has held that the purpose of Order 38 Rule 5 of CPC is not to convert an unsecured debt into a secured debt. Here is not a case of unsecured debt and in the case on hand, suit is filed seeking the relief of declaration to declare the release deed as null and void and it is also pleaded with regard to the circumstances under which the document of release deed came into existence. Hence, the said judgment is also not applicable to the facts of the case on hand.

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31. In the other judgment in CHANDRIKA PRASHAD

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SINGH’s case, learned counsel for the caveator-respondent No.1 brought to notice of this Court Para Nos.6 and 7 with regard to believing the case of the parties and exercising the power under Order 38 Rule 5 of CPC.

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Having taken note of factual aspects of the case, this

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Court in detail discussed the circumstances under which the release deed came into existence and taken note of the fact that both the husband of the first plaintiff and defendant No.1 jointly purchased the property and executed the lease deed. But, the document came into existence when he was not keeping his good health and the said fact has not been taken note by the Trial Court and the Trial Court comes to the conclusion that no prima facie case is made out and the very approach of the Trial Court is erroneous and the Trial Court ought to have considered the medical records and also the fact that document of release deed came into existence on 19.09.2018 and prior to that the husband of the first plaintiff was taking treatment in the hospital. Further, the allegation is also that he was addicted to alcohol and was suffering from liver disease and medical records also supports the case of the plaintiffs and those circumstances are not taken note of by the Trial Court and committed an error in rejecting the application. Hence, the order impugned requires interference.

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In view of the discussion made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned order dated 08.10.2021 in O.S.No.3944/2020 on the file of the XXVII Additional City Civil Judge at Bengaluru City, is hereby set aside and consequently, the application filed under Order 38 Rule 5 of CPC is allowed and the relief as sought in the application is granted in favour of the plaintiffs.

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Sd/JUDGE

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Smt Nethra Narayan v. Sri N J Murthy

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Smt Nethra Narayan v. Sri N J Murthy

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