- 1 - NC: 2025:KHC:13224 MFA No. 716 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 716 OF 2024 (CPC) BETWEEN: 1. SRI. P.M. RAJU, S/O LATE POTHALAPPA, AGED ABOUT 59 YEARS, R/AT NO.33, IST MAIN ROAD, 2ND CROSS, NEAR BYLANJINAYA TEMPLE, GANGANAGAR, BENGALURU - 560 032. 2. SRI. T.G. RAVIPRAKASH S/O SRI. T.G. GOVINDAIAH, AGED ABOUT 52 YEARS, R/AT NO.11, 2ND CROSS, B.K. NAGAR, YESHWANTHAPURA, BENGALURU - 560 022. …APPELLANTS (BY SRI. G. KRISHNAMURTHY, SR. COUNSEL A/W SRI. SUNDARESH G, ADVOCATE) AND: 1. SRI MATHEW THOMAS S/O LATE M.M. THOMAS, AGED ABOUT 77 YEARS, 2. SRI. MEROS MATHEW S/O MATHEW THOMAS, AGED ABOUT 40 YEARS, REPRESENTED BY HIS PA HOLDER Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13224 MFA No. 716 of 2024 SRI. MATHEW THOMAS, NO.1 AND 2 ARE RESIDING MANNI KAROTTU HOUSE, KAITHA PARAMPU, PALATHANAM THITTA, KERALA. 3. SRI. B. SHANKAR RAO S/O LATE BUJANGARAO, AGED ABOUT 67 YEARS, R/AT NO.2, JANAKI NILAYA, 3RD CROSS, K.K .EXTENSION, PAPAREDDY PALYA, NAGARABHAVI 2ND STAGE, BENGALURU - 560 079. …RESPONDENTS (BY SRI. K. VIJAYA KUMAR, ADVOCATE FOR C/R1 AND C/R2) THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 21.12.2023 PASSED ON I.A.NO.1 IN OS.NO.7783/2023 ON THE FILE OF THE 24TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCCH.NO.6 REJECTING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The plaintiffs being aggrieved by the order dated 21.12.2023 passed on I.A.No.1 filed under Order XXXIX Rules 1 and 2 of CPC, thereby rejecting the application filed for temporary injunction in O.S.No.7783/2023 by - 3 - NC: 2025:KHC:13224 MFA No. 716 of 2024 XXIV Additional City Civil and Sessions Judge at Bengaluru City (CCH-6), are before this Court. 2. It is the case of the plaintiffs that plaintiffs have entered into an agreement of sale with defendant Nos.1 and 2 dated 19.09.2014 for a total sale consideration of Rs.7,11,00,000/- out of which, the plaintiffs have paid a sum of Rs.2,50,00,000/- to the defendants in respect of the schedule property, but the defendants instead of executing sale deed in favour of plaintiffs for the entire sale consideration, have executed sale deed for a sum of Rs.7,11,00,000/- in respect of the plaint schedule property. 3. There are two lands one is litigated land, the subject matter is in O.S.No.8663/2012 and the remaining half of land is not litigated. It is agreed that if litigation is not resolved, then by reducing the sale consideration amount, the defendants have to execute sale deed in favour of plaintiffs by receiving sum of Rs.3,36,93,000/-, this is in respect of the non-litigated property. The dispute - 4 - NC: 2025:KHC:13224 MFA No. 716 of 2024 is not resolved in O.S.No.8663/2012, hence for the remaining non-litigated land, the plaintiffs have requested the defendants to execute the sale deed, but the defendants have denied. Therefore, the plaintiffs have filed a suit for specific performance of contract. It is submitted that the plaintiffs have paid a substantial amount of Rs.2,50,00,000/- which is more than 2/3rd amount of total sale consideration and the balance amount payable is Rs.86,93,000/- in respect of plaint schedule property. Therefore, the plaintiffs have filed an application under I.A.No.1, Order XXXIX Rules 1 and 2 of CPC, which was dismissed. 4. Sri. G. Krishna Murthy, learned Senior Counsel appearing for plaintiffs submits that the plaintiffs have filed substantial amount to defendants. Therefore, they have made a prima facie case and hence, if defendants alienated the suit schedule land then it is required for the plaintiffs either to get the land or refund of the amount. Therefore, prays for grant of temporary injunction - 5 - NC: 2025:KHC:13224 MFA No. 716 of 2024 restraining defendants from alienating the suit schedule land in respect of the properties. 5. Learned counsel for respondent No.2/defendant No.2 submitted that defendant No.2 has not executed the general power of attorney in respect of defendant No.1, as he was at that time, not in India. Therefore, there is no question of execution of general power of attorney in favour of defendant No.1. Admittedly, defendant No.1 is the father of defendant No.2. Therefore, he filed document with a copy of passport saying that as on the date of agreement on 19.09.2014, defendant No.2 was not in India and therefore, there is no question of execution of agreement of sale in favour of defendant No.1. Further submitted that the suit filed by the plaintiffs is premature one, but as per the agreement of sale after resolving the dispute in O.S.No.8663/2012 the plaintiffs have filed the suit, which suit is still pending. Hence, there is no cause of action arising to the plaintiffs to file the suit. Therefore, prima facie the suit is not maintainable. - 6 - NC: 2025:KHC:13224 MFA No. 716 of 2024 6. It is further disputed that the plaintiffs have paid a sum of Rs.2,50,00,000/-. The land belongs to the defendant No.2 but not defendant No.1. Therefore, the Trial Court has observed this and then dismissed the application. Therefore, order passed by Trial Court in dismissing the application is justified. The Trial Court has observed that as on the date of sale agreement i.e., on 19.09.2014 the defendant No.2 was not in India. Therefore, there is no question of execution of general power of attorney in favour of defendant No.1. Therefore, dismissed the application. 7. Defendant Nos.1 and 2 have filed a common written statement and stated that the suit schedule property belongs to both defendant No.1 and 2. Defendant No.2 is the son of defendant No.1. The agreement of sale dated 19.09.2014 shows that defendant No.2 was the GPA holder of his father. Defendant No.2 disputed that the plaintiffs have paid a sum of Rs.2,50,00,000/- to defendant No.2 and stated - 7 - NC: 2025:KHC:13224 MFA No. 716 of 2024 that defendant No.1 has received a sum of Rs.75,00,000/-, but the plaintiffs have produced acknowledgement of receipt of payment to that extent. The defendant Nos.1 and 2 have received a sum of Rs.2,50,00,000/- from plaintiff No.1. So when this being a contentious issue that the plaintiffs have paid substantial part of amount out of total sale consideration amount as part payment made by plaintiffs in favour of defendant No.1 and defendant No.1 has also filed a common written statement. Therefore, the plaintiffs have made out a prima facie case and if the defendants alienate the property, then plaintiffs would be put into irreparable loss and injury. The plaintiffs have made a prima facie case either to obtain decree or to refund of the amount. In such an event, if the suit schedule property is disposed of, then it would be difficult for the plaintiffs to recover the amount from the defendants. Further, the defendants have also entered into an agreement of sale with one M/s Ramya Resorts Pvt. Ltd., when this being the dispute and in that dispute, the - 8 - NC: 2025:KHC:13224 MFA No. 716 of 2024 defendants have undertaken not to alienate the properties and observing this, this Court has dismissed the appeal filed by M/s Ramya Resorts Pvt. Ltd. Therefore, considering all these factors, plaintiffs have made out a prima facie case either for obtaining a decree or refund of the amount and therefore, if order of temporary injunction is not granted in favour of plaintiffs restraining defendants from making alienation, then it would cause irreparable injury or loss to the plaintiffs. Therefore, the Court is of the opinion to allow the appeal by granting an order of temporary injunction restraining the defendants from alienating the suit schedule land. Accordingly, I proceed to pass following order. ORDER i. The appeal is allowed. ii. The order dated 21.12.2023 passed in O.S.No.7783/2023 on the file of XXIV Additional City Civil and Sessions Judge, Bengaluru, is set aside. - 9 - NC: 2025:KHC:13224 MFA No. 716 of 2024 iii. The defendant Nos.1 and 2 are restrained from alienating and encumbering the suit property in favour of 3rd party and creating any 3rd party rights, till the disposal of the suit. iv. After disposal of O.S.No.8663/2012, defendant No.1 is at liberty to make an appropriate application before the Trial Court for modification of the order. v. Whatever observations are made above shall not be construed on merits involved in the case, but only for the purpose of considering the appeal. vi. The Trial Court without being influenced by observations shall consider the suit on merits in accordance with law. SD/- (HANCHATE SANJEEVKUMAR) JUDGE AMA List No.: 1 Sl No.: 33 CT: BHK