Appellant was a necessary party to the contract suit, as the decree granted specific performance implicated property rights established through prior mortgage agreements.

JUDGMENT :

UMESH M ADIGA, J.

This appeal is filed by a third party directed against judgment and decree dated 21.01.2011 in OS No.6402/ 2009 passed by 17^th Additional City Civil and Sessions Court, Bengaluru (CCH-16) (for short 'trial Court').

2. Respondent No.1 herein had filed OS.No.6402/2009 against respondent Nos.2 to 6 herein for the relief of specific performance of contract. The trial Court by impugned judgment and decree, decreed the said suit and granted the relief of specific performance of the contract. The appellant, who is claiming to be a mortgagee of the subject matter in OS No.6402/2009, has filed the present appeal challenging the decree granted by the trial Court.

3. The facts in brief of the case in OS No.6402/2009 are as under:

Respondent No.1 herein Dr.Thambaya Sundaram filed a suit OS.No.6402/2009 for the relief of specific performance of the contract. According to him, defendants of the said suit were joint owners of the suit schedule property. Plaintiff and defendant No.1 were close friends and plaintiff was permanently residing in USA and whenever he used to visit India, i.e, to Bangalore, he used to meet defendant No.1. During the year 2006, when plaintiff visited India, he met the first defendant. During their discussions, defendant No.1 proposed to sell the suit property to the plaintiff. The said proposal was accepted by the plaintiff and both of them agreed to transfer the said property for Rs.21,50,000/-. Accordingly, defendant No.1 had executed an agreement of sale dated 05.07.2006, agreeing to sell the suit schedule property and he received an amount of Rs.7,70,000/- towards part of the sale consideration. Thereafter, whenever plaintiff visited India, as requested by defendant No.1, he went on paying part of the sale consideration and in all he had paid Rs.15,70,000/-. Plaintiff had repeatedly requested defendants to execute the registered sale deed in his favour, by receiving balance of sale consideration and defendants on one or the other reason went on postponing to execute and register the sale deed. Plaintiff also came to know that defendants Nos.1 to 5, with a view to defeat the rights of the plaintiff were creating certain encumbrances on the said property. He issued notice dated 05.10.2009, calling upon the defendants to execute and register the sale deed, and inspite of service of notice, the defendants did not come forward to execute the registered sale deed in respect of the suit property in favour of the plaintiff that constrained the plaintiff to file the suit. With these reasons, plaintiff sought for the relief of specific performance of the agreement and also sought for the relief of permanent injunction restraining the defendants from selling, alienating or transferring of suit property in any mode.

4. Defendant Nos.1 to 5 appeared before the trial Court, but did not file written statement. The trial Court recorded the evidence of plaintiff, heard the arguments and by the impugned judgment decreed the suit.

5. It is the contention of the appellant that to execute the said decree, plaintiff (respondent No.1) herein filed Ex.P.No.2559/2023 before 17th Additional City Civil and Sessions Court, Bengaluru (CCH-16) and got executed the decree passed in the above said suit.

6. The contentions of the appellants are that it is a non-banking financial institution. 2^nd and 3^rd respondents herein approached it with a request of sanction of loan during the year 2008. After considering the request o