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High Court of Karnataka
THE HONOURABLE MR. JUSTICE S. ABDUL NAZEER
V. Dhayalan
Versus
Muniswamy & Another
Regular First Appeal No.464 of 2008 (SP)
Decided On : : 17-09-2009
CODE OF CIVIL PROCEDURE, 1908 - Order 41, Rule 33: [S.Abdul Nazeer,J] Power of Court of Appeal - Exercise of -Circumstances - Held, The power under Order 41 Rule 33 CPC can be exercised only when, as a result of interference in favour of the appellant, it becomes necessary to adjust the rights of the parties. Ordinarily the power in this rule should be limited to those cases where, as a result of the Appellate Court’s interference with a decree in favour of the appellant, a further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. Further, if the Appellate Court finds any inconsistent, contradictory or unworkable order would be the ultimate result if the decree is not passed in favour of the appearing respondent, the Appellate Court would exercise its power under Order 41 Rule 33 CPC and not otherwise. The power under Rule 33 could be exercised only when the portion of the decree appealed against is so inseparably connected with the portion not in the appeal, and a complete inconsistent decree cannot be passed unless the latter portion, is as well interfered with.
TRANSFER OF PROPERTY ACT, 1882 - Section 52 :[S.Abdul Nazeer,J] Principle of Lis Pendens - Suit for Specific Performance of the agreement - Failure of Plaintiff to implead the subsequent Purchaser/Transferee Pendente lite to the Suit - Rejection of prayer for Specific Performance - Legality of -Held, Section 52 of the Act only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court. On facts held, the Defendant has sold the Suit Schedule Property under Ex.P4 during the operation of interim order of injunction restraining him from alienating the Suit Schedule Property and obviously the defendant has not taken permission from the Court for sale of the said property. It is no doubt true that the purchaser was not made a party to the suit nor sale deed Ex.P.4 was under challenge. It is settled that a litigating party is exempted from taking notice of the title acquired during the pendency of litigation. The transferee pendente lite remains bound by the decree. The prayer for Specific performance cannot be denied on the ground that the plaintiff has not impleaded the transferee pendente lite to the Suit. The Judgment and Decree passed by the Court below rejecting the prayer of the plaintiff for specific performance of the contract is set aside. Suit filed by the plaintiff is decreed.
SPECIFIC RELIEF ACT, 1963 - Section 16(c): [S. Abdul Nazeer, J] Suit for specific performance - Principle of Lis Pendens - Suit for Specific Performance of the agreement - Failure of Plaintiff to implead the subsequent Purchaser/Transferee Pendente lite to the Suit - Rejection of prayer for Specific Performance - Legality of -Held, Section 52 of the Act only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court. On facts held, the Defendant has sold the Suit Sehedule Property under Ex.P4 during the operation of interim order of injunction restraining him from alienating the Suit Schedule Property and obviously the defendant has not taken permission from the Court for sale of the said property. It is no doubt true that the purchaser was not made a party to the suit nor sale deed Ex.P.4 was under challenge. It is settled that a litigating party is exempted from taking notice of the title acquired during the pendency of litigation. The transferee pendente lite remains bound by the decree. The prayer for Specific performance cannot be denied on the ground that the plaintiff has not impleaded the transferee pendente lite to the Suit. The Judgment and Decree passed by the Court below rejecting the prayer of the plaintiff for specific performance of the contract is set aside. Suit filed by the plaintiff is decreed.
This appeal is directed against the judgment and decree in O.S.No.370/1999 dated 31.10.2007 on the file of the 17th Additional City Civil Judge, Bangalore City. The appellant was the plaintiff in the said suit and the respondents were the defendants. For the sake of convenience, the parties are referred to by their respective ranking before the trial Court.
2. The subject matter of the suit is a site bearing No.39 formed in Sy.No.48/1, Haralakunte Hosapalya, Begur Hobli, Bangalore South Taluk (presently No.39, 3rd Cross, Maramma Beedi, Hosapalya, Madivala Post, Bangalore) measuring east to west 30 ft, and north to south 40 ft bounded on the east by site No.40, west by site No.38, north by 3rd cross road (25 ft. wide) and south by private property (hereinafter referred to as ‘the schedule property’).
3. It is the case of the plaintiff that the first defendant is the sole and absolute owner of the schedule property. The first defendant has executed a power of attorney on 21.8.1999 in favour of the second defendant authorising him to manage/alienate the said property. The first defendant acting through the second defendant offered to sell the schedule property to the plaintiff and the plaintiff, who was in the look out for the purchase of a site, agreed to purchase the same. Accordingly the first defendant acting through the second defendant entered into an agreement of sale dated 2.5.1996 with the plaintiff, agreeing to sell the schedule property for a total consideration of Rs.25,000/- and in furtherance of the said agreement, the second defendant received a sum of Rs.20,000/- towards advance. It is agreed that balance of the sale consideration is payable by the plaintiff at the time of execution and registration of the sale deed. In furtherance of the said agreement, the plaintiff was put in possession of the schedule property and he has been in possession of the said property since then. There was restriction for the registration of revenue lands during the said period. Therefore, a period of two years was fixed under the agreement for execution of the sale deed. The plaintiff has always been ready and willing to perform his part of the contract. But the transaction could not be completed on account of the reluctance of the second defendant to execute the sale deed. The plaintiff approached the second defendant on many occasions requesting him to execute the sale deed by receiving the balance of the sale consideration. However, the second defendant went on postponing the same on one pretext or the other. The plaintiff has laid foundation on the schedule property measuring 15 ft. x 12 ft. for erecting a shed. The first defendant interfered with his possession with the sole intention of selling the same to third parties for higher consideration. Therefore, he has filed the aforesaid suit for specific performance of the agreement of sale dated 2.5.1996. Alternatively, he has sought for a direction to the defendants to refund the advance amount of Rs.20,000/- together with damages of a similar sum.
4. The defendant has entered appearance in the suit and has filed his written statement. He has denied the execution of the power of attorney dated 21.8.1989 in favour of the second defendant in respect of the suit schedule property. He has also denied the execution of the agreement dated 2.5.1996 and receipt of Rs.20,000/-. He has denied all the other averments made in the plaint and has sought for dismissal of the suit.
5. On the basis of the pleadings of the parties, the court below has framed the following
issues:
“1. Whether the plaintiff proves that 1st defendant through his power of attorney of 2nd defendant, agreed to sell the suit property for a consideration of Rs.25,000/- and executed an agreement of sale on 2.5.1996?
2. Whether the plaintiff proves that has paid advance sale consideration of Rs.20,000/-to the 2nd defendant as power of attorney holder of the 1st defendant?
3. Whether the plaintiff proves that he i
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