IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR M.F.A.No.3737 OF 2017 (CPC) BETWEEN:
Sri. Divakar, S/o. late Sri. Venkatachala, Aged about 36 years, R/at No.62, 1 ‘A’ Cross, 1st Main, Cholur Palya, Magadi Road, Bengaluru – 560 053.
(By Sri. Anees Ali Khan, Advocate) AND:
…Appellant 1. C. Lakshminarayana Sony, S/o. late B. Chandran, Aged about 46 years, R/at No.32, Anchepet, Basavana Temple Street, Avenue Road Cross, Bengaluru – 560 053.
2. Mr. E. Basha, Aged about 57 years, S/o. Mr. Ebrahim, R/at No.4, Basavangudi Beedi, Park Road, Anchepet, Bengaluru – 560 053.
…Respondents (By Sri. Rama Mohan M, Advocate for C/R1) This MFA is filed under Order 43 Rule 1(d) of CPC, against the Order dated 18.03.2017 passed in Misc.No.307/2011 on the file of the XI Additional City Civil Judge, Bengaluru, dismissing the petition filed under Order 9 Rule 13 of CPC.
This MFA coming on for admission this day, the court delivered the following:
J U D G M E N T Heard the appellant’s counsel. Respondents’ counsel is also present.
2. This appeal is preferred by the petitioner in Misc. No.307/2011 on the file of XI Addl. City Civil Judge, Bengaluru. The petitioner was the 1st defendant in O.S.No.661/1997. The said suit was for specific performance and it was decreed on 27.01.2011. The appellant made a petition under Order 9 Rule 13 CPC seeking to set aside the judgment and decree passed in the said suit. The trial Court held an enquiry and came to the conclusion that the appellant failed to show sufficient cause for setting aside judgment and decree passed in O.S.No.661/1997 and dismissed the petition with cost of Rs.20,000/-.
3. On perusing the impugned judgment and decree, it becomes clear that in the suit, the appellant was served with summons through Registered Post Acknowledgment due. During the pendency of the suit, he sold the property to the 2nd respondent, who is 2nd defendant in the suit. Actually, 2nd respondent contested the suit and he preferred first appeal before this Court challenging the judgment and decree. This first appeal is still pending.
4. The trial Court has clearly observed that certified copy of the judgment and decree in the suit enclosed with the petition filed under Order 9 Rule 13 CPC was actually applied by the 2nd respondent. It has also observed that the appellant, having sold the property during the pendency of the suit, lost interest in the suit and this might be the reason for appellant not contesting the suit. Having gone through the judgment, I am of the clear opinion that the reasons assigned by the trial Court for dismissing the petition did not suffer from any infirmity. Even otherwise the appeal filed by 2nd respondent is still pending and if really the appellant has any grievance, he can put forward the same according to Order 41 Rule 33 CPC in the first appeal filed by the 2nd respondent, if the appellant is a party in the said appeal. Therefore, this appeal is not worth admission, it is rejected.
Sd/- JUDGE SV