IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.180 OF 2018 BETWEEN:
Sri. A.S.Umashankar, S/o. Sri. A.N.Sadashivaiah, Aged about 54 years, R/at No.151/3, 14th Cross, 3rd Main Road, Vyalikaval, Bengaluru-560003.
(By Sri. G.B.Nandish Gowda, Advocate) AND:
1. Sri. Thatiappa, S/o. Late Sri. Gangappa, Aged about 65 years, R/o. Gangapura Village, Nandagudi Hobli, Hosakote Taluk, Bengaluru Rural District-562114.
2. Sri. Nagappa, S/o. Sri. Muninagappa, Aged about 75 years, R/o. Mothakadhalli Village, Bengaluru Rural District-562114.
…Appellant ... Respondents (By Sri. Ajay R. Anneppanavar, Advocate for R1, Sri. Chandramouleswara Chari, Advocate for R2) This RFA is filed under Section 96 of CPC, against the order dated 09.10.2017 passed in Ex.No.44/2018 on the file of the I Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, dismissing the I.A. filed under Order 21 Rule 97 read with Section 151 of CPC.
This RFA coming on for admission this day, the Court made the following:
ORDER Heard the appellant’s counsel and the second respondent’s counsel at the time of admission.
2. This appeal is filed by an applicant under Order 21 Rule 97 of CPC in Ex.No.44/2018 on the file of I Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
3. The facts are as below:
The first respondent filed a suit against second respondent for specific performance based on the agreement dated 18.03.1980. The suit came to be decreed against second respondent. The first respondent put the decree into execution. At that time, the appellant made an application under Order 21 Rule 97 of CPC objecting execution of the decree. The trial Court dismissed the application giving reason that the appellant had already filed a suit O.S.No.154/2013 for setting aside the judgment in O.S.No.1519/2006, the decree which was sought to be executed. The executing Court has also held that the application is not maintainable as the decree under execution is not a decree for possession, and that the appellant was claiming right, title and interest over the property in question under the judgment debtor and therefore he could not resist the execution proceedings.
4. Learned counsel for the appellant submits that the appellant holds an agreement of sale dated 19.04.2006 executed by the second respondent and the suit between the first and second respondents was a collusive one. The appellant is very much interested in the subject matter of the suit. Therefore, he is entitled to maintain an application under Order 21 Rule 97 of CPC. The trial Court has wrongly dismissed his application.
5. I do not think that this appeal is worth admission. It is not disputed that the appellant has already filed a suit O.S.No.154/2013 seeking cancellation of decree in O.S.No.1519/2006. He has based his claim on the basis of agreement of sale dated 19.04.2006 executed by the second respondent. Since he has already sought cancellation of decree and in case he succeeds in the suit he gets a right to enforce the agreement by filing a suit for specific performance. As of now, he has based his claim on an agreement of sale dated 19.04.2006, but the first respondent instituted a suit based on agreement of sale dated 18.03.1980. It appears that the appellant has no other document except the agreement of sale dated 19.04.2006. It is needless to say that mere agreement of sale does not confer any right, title or interest on the appellant. The trial Court has given cogent reasons for dismissing the application. There are no merits in this appeal. Appeal is dismissed.
KMV/-
Sd/- JUDGE