Sale Deed Cannot Create Any Right In Favour Of Plaintiff If There Exists Decree Prior To Execution Of The Deed: Karnataka HC

The Karnataka High Court has allowed the case of the plaintiff who had filed a suit for relief seeking a declaration that she was the absolute owner and in lawful possession and enjoyment of the suit schedule property and to declare that the preliminary decree passed by the Apex Court dated July 14, 2017, and the order and final decree drawn by the Civil Judge, Bengaluru, dated Feb 06, 2019, was not binding on the plaintiff or affecting the suit schedule property.

Referring to the decision of the Apex Court in P.V. Guru Raj Reddy, represented by GPA Laxmi Narayan Reddy and another v. P. Neeradha Reddy and others [(2015) 8 SCC 331], a Single Judge Bench of Justice H.P. Sandesh reiterated that “Admittedly, the vendor of the plaintiff is a party to the earlier suit and R.F.A. and he has suffered the decree. When such is material on record, the question of once again agitating the issue in respect of the very subject matter of the property, which is a portion of the property, suffered by the vendor of the plaintiff, who is bound by the judgment and decree passed against his vendor and there cannot be new grounds arise to him once again to litigate the same”.

The Bench found that since there was an undertaking by the vendor of the plaintiff and also there was a decree before the execution of the Sale Deed, the Sale Deed was executed when the appeal was pending before this Court and the same could not create any right in favour of the plaintiff.

“Hence, there was no cause of action to file a suit, as well as the litigation, would never come to an end if proceeded to take up the suit, which was hit by Section 52 of the Transfer of Property Act”, added the Bench.

Senior Advocate K. Suman appeared for the Petitioner, whereas Advocate V. Prabhakar appeared for the Respondent.

In the present case, the revision petition challenged the rejection order with costs of INR 1000/- passed by the Trial Court which was filed under Order VII Rule 11(d) read with Section 151 of Code of Civil Procedure, 1908 (CPC). The defendant had claimed that he had filed a suit partition against the defendant’s vendors wherein they had undertaken not to alienate the same as per the undertaking given to the Trial Court. The said suit was partly decreed in 2007 against which, she had preferred an appeal which was allowed granting 1/4th share to her in the suit schedule property. The Court had appointed a Court Commissioner to divide the same after hearing the objections from all the parties. Accordingly, the northern side of the suit schedule property measuring 425 sq.ft. had fallen as her share and she had taken possession of the same through the Court by filing Execution Petition, where she became the judgment debtor in the said case. After taking possession of the same, the plaintiff entered into a rental agreement with the defendant. Apart, from whatever alleged transaction had taken place between him and his vendors, the pending proceedings were subject to the result of the suit.

Now, the issue for consideration before the High Court was, whether the Trial Court had committed an error in not allowing the application filed under Order VII Rule 11(d) read with Section 151 of CPC and whether the said order suffered from its legality and correctness.

After considering the submission, the Bench stated that it was settled law that the Court had to investigate the contents of the plaint while invoking Order VII Rule 11 of CPC and it could not investigate the defense.

The Bench noted that the plaint specifically pleaded that defendant falsely claimed that they had right over the portion of the suit schedule property in terms of the judgment and decree and the possession had been delivered in the Execution petition.

The High Court also found that the suit was decreed in the year 2007 and an appeal was pending before this Court during which the plaintiff had purchased the property.

“The original suit is of the year 1997 and is not pleaded in the plaint and an ingenious method only pleaded R.F.A. and not stated anything about the decree passed in the suit and purchasing the property when there is a decree and also there is an undertaking and the cause of action is also pleaded about the date of purchase i.e., 20.03.2010 and the preliminary decree passed by this Court vide order dated 14.07.2017 and thereafter on 06.02.2009 when the final decree is drawn and the fact that the vendor is a party to the suit, appeal and FDP proceedings is not in dispute”, added the Court.

While navigating through the relief of declaration to declare that the preliminary decree obtained was not binding on the plaintiff or affecting the suit schedule property and when the same was purchased during the pendency of the appeal, it could not be contended that the order passed by this Court as well as in FDP, the Bench stated that the suit appears to be barred by law under Section 52 of the Transfer of Property Act and the same cannot be adjudicated in the Court once again.

Cause Title: N. Varalakshmi v. V.R. Shivananda Murthy and Ors.

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