- 1 - NC: 2025:KHC:10402 RSA No. 571 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 571 OF 2016 (SP) BETWEEN: SMT MAMATHA W/O LATE M.S. NAGEGOWDA, AGED ABOUT 44 YEARS, RAGIMUDDENAHALLI VILLAGE, CHINAKURULI HOBLI, PANDAVAPURA TALUK MANDYA DISTRICT-571435 …APPELLANT (BY SRI. GAURAV PATIL, ADVOCATE) AND: 1. CHANDRE GOWDA S/O THAMMEGOWDA, AGED ABOUT 54 YEARS, NO.3077/3, PARK ROAD, GOKULAM, MYSURU-570028 2. SRI DODDATHAMMA NAIKA S/O LATE KOTE CHELUVA NAIKA AGED ABOUT 71 YEARS 3. SRI CHIKKANNA S/O LATE KOTE CHELUVA NAIKA AGED ABOUT 67 YEARS 4. SRI PUTTA NAIKA S/O LATE KOTE CHELUVA NAIKA AGED ABOUT 65 YEARS Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10402 RSA No. 571 of 2016 5. SRI KRISHNA NAIKA S/O LATE KOTE CHELUVA NAIKA AGED ABOUT 64 YEARS RESPONDENTS 2 TO 5 ARE RESIDENTS OF HINKAL VILLAGE, BEHIND MARIGUDI TEMPLE, NAIKA STREET, KASABA HOBLI MYSURU TALUK, MYSURU-570028 …RESPONDENTS (BY SRI. B S NAGARAJ, ADVOCATE FOR R1 R3 TO R5 ARE SERVED V/O DATED 13.04.2023 SUBSTITUTION OF LRS OF R2 IS D/W) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.12.2015 PASSED IN RA.NO.462/2012 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.10.2012 PASSED IN OS.NO.352/2005 ON THE FILE OF THE III ADDL. SR. CIVIL JUDGE AND CJM., MYSORE. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 16.12.2015, passed in R.A.No.462/2012 by the VII Additional District Judge, Mysuru and the judgment and decree dated - 3 - NC: 2025:KHC:10402 RSA No. 571 of 2016 20.10.2012 passed in O.S.No.325/2005 by the learned III Additional Senior Civil Judge, Mysuru. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was defendant No.5, respondent No.1 was the plaintiff, and other respondents were other defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for the relief of the specific performance of a contract. It is the case of the plaintiff that defendants Nos.1 to 4 are the absolute owners of the suit schedule property, and they agreed to sell the suit schedule property for valuable consideration of Rs.2,55,000/-. Accordingly, the defendants received Rs.25,000/- as an advance consideration amount on 24.12.2004. It was agreed that the balance sale consideration amount to be paid within four months from the date of execution of the sale agreement and the defendants shall get the title deed - 4 - NC: 2025:KHC:10402 RSA No. 571 of 2016 about the suit schedule property from MUDA, Mysore and then to convey the suit schedule property by receiving the balance consideration amount in favour of plaintiff. Ever since the date of execution of the sale agreement, the plaintiff always has been ready and willing to perform his part of the contract, but defendant Nos.1 to 4 went on postponing to perform their part of the contract. By the virtue of the non-performance of the contract, the plaintiff has been put into great hardship and inconvenience. The plaintiff, to prove that the plaintiff always has been ready and willing to perform his part of the contract, got issued a legal notice on 28.03.2005 calling upon defendant Nos.1 to 4 to receive the balance sale consideration amount and to execute the registered sale deed. The said notice was served on defendant Nos.1 to 3 and defendant No.4 avoided to receive the same. Despite repeated requests by the plaintiff, defendant Nos.1 to 4 did not perform their part of the contract. Hence, prays to decree the suit. - 5 - NC: 2025:KHC:10402 RSA No. 571 of 2016 3.1. Initially, the suit was filed against defendant Nos.1 to 4. During the pendency of the suit, defendant Nos.1 to 4 alienated the suit schedule property in favour of defendant No.5. The plaintiff filed an application to implead defendant No.5, and the said application was allowed. Defendant No.5 was impleaded as a purchaser during the pendency of the suit. 3.2. Defendant No.1 filed a written statement, which was adopted by defendant Nos.2 to 4. Defendant Nos.1 to 4 denied the execution of the sale agreement in favour of the plaintiff and receiving of advance sale consideration amount. It is contended that defendant No.1 had orally agreed to sell the suit property in favour of one Smt. Mamata on 10.02.2004. In terms of said oral agreement, they wanted the title deed from MUDA, hence, they approached the plaintiff, who was a Police Constable and appraised regarding the oral agreement with defendant No.5- Smt. Mamatha, and his efforts to get the title deeds from MUDA to execute the sale deed in favour - 6 - NC: 2025:KHC:10402 RSA No. 571 of 2016 of Smt. Mamatha. The plaintiff promised and assured the defendant No.1 to get the title deed from MUDA at the earliest, as the concerned officials of the MUDA are known to him very well. The defendant Nos.1 to 4 were asked to put their thumb impressions and hence, defendant No.1 got the signatures of his other brothers on the papers supplied by the plaintiff. The plaintiff collected Rs.5,000/- towards his service charges. It is admitted that the plaintiff issued a legal notice. The defendants contacted the advocate on 15.06.2005 to know the contents of the papers sent by the Court. On coming to know about the contents of the plaint from the advocate, defendant No.1 was shocked regarding the alleged agreement dated 24.12.2004 that they said to have been executed. It is contended that when there was no such sale agreement executed by defendant Nos.1 to 4 in favour of the plaintiff, the question of readiness and willingness does not arise. Hence, there is no cause of action to file the suit for specific performance of a contract. Hence, prays to dismiss the suit. - 7 - NC: 2025:KHC:10402 RSA No. 571 of 2016 3.3. Defendant No.5 filed a written statement denying the averments made in the plaint. It is contended that defendant Nos.1 to 4 executed the registered sale deed in the name of defendant No.5. Defendant No.5 is in lawful possession of the suit schedule property and is the bonafide purchaser for valuable consideration. The plaintiff has no locus standi to seek for a declaration that the sale deed dated 13.06.2005 is null and void. Hence, prays to dismiss the suit against defendant No.5. 3.4. The Trial Court, based on the above-said pleadings, framed the following issues and additional issues: 1) Whether the plaintiff proves that defendant Nos.1 to 4 have agreed to sell the suit schedule property for a sum of Rs.2,55,000/- under written agreement of sale dated 24.12.2004 and they have received advance amount of Rs.25,000/- both parties have agreed complete the sale transaction within four months from the date of agreement? 2) Whether the plaintiff proves that the defendants have agreed to get the title deed pertaining to the site property from MUDA with the four months from the date of - 8 - NC: 2025:KHC:10402 RSA No. 571 of 2016 agreement and then to convey the property by receiving the balance of sale consideration? 3) Whether the defendants prove that the plaintiff has obtained thumb impressions on the papers promising them to get the title deed from MUDA? 4) Whether the suit is not properly valued? 5) Whether the plaintiff is entitled for the relief of specific performance of contract as prayed for? 6) What order or decree? Additional Issues: 1) Whether defendant No.5 proves that she is a bonafide purchaser of the suit schedule property for valuable consideration as contended in her written statement ? 3.5. To substantiate his case, the plaintiff examined himself as PW-1 and examined one witness as PW.2 and marked eight documents as Exs.P1 to 8. On the other hand, defendant No.1 was examined as DW.1, defendant No.5 was examined herself as DW.2 and marked ten documents as Exs.D1 to 10. The trial Court, after recording the evidence, hearing on both sides and on the assessment of the oral and documentary evidence, answered issues 1, 2, 4 and 5 in the affirmative, issue No.3 and additional issue No.1 in the negative, and issue - 9 - NC: 2025:KHC:10402 RSA No. 571 of 2016 No.6 as per the final order. The suit of the plaintiff was decreed with cost. Defendant Nos.1 to 4 were directed to execute the registered sale deed in favour of the plaintiff regarding the suit schedule property by receiving the balance consideration amount of Rs.2,30,000/- within 60 days from the date of judgment. On their failure, the plaintiff is at liberty to apply for the same to the court. 3.6. Defendant No.5, aggrieved by the judgment and decree passed in O.S.No.352/2005, preferred an appeal in R.A.No.462/2012, on the file of VII Additional District Judge, Mysuru. The First Appellate Court, after hearing the arguments of the learned counsel for the parties, framed the following points for consideration. 1) Whether the appellant is a bonafide purchaser without notice? 2) Whether the sale deed dated 13.06.2005 executed by respondents in favour of the appellant is hit by the Doctrine of Lis Pendens? 3) Whether the impugned judgment and decree of the lower Court is opposed to law, facts and circumstances of the case and interference of this Court is necessary? 4) What Order? - 10 - NC: 2025:KHC:10402 RSA No. 571 of 2016 3.7. The First Appellate Court, on re-assessing the oral and documentary evidence, answered point No.1 and 3 in the negative, point No.2 in the affirmative, and point No.4 as per the final order. The appeal was dismissed vide judgment dated 16.12.2015. Defendant No.5, aggrieved by the judgments and decrees passed by the Courts below, has filed this regular second appeal. 4. Heard the arguments of the learned counsel for defendant No.5 and the learned counsel for the plaintiff. 5. Learned counsel for defendant No.5 submits that defendant Nos.1 to 4 never executed any sale agreement, agreeing to sell the suit schedule property in favour of the plaintiff, and the plaintiff never paid the advance sale consideration amount. The plaintiff has failed to prove the execution of the sale agreement by defendant Nos.1 to 4. He also submits that defendant Nos.1 to 4 sold the suit schedule property in favour of defendant No.5, and defendant Nos.1 to 4 put defendant No.5 in possession of the suit schedule property. He submits that - 11 - NC: 2025:KHC:10402 RSA No. 571 of 2016 defendant No.5 is in possession of the suit schedule property. The said aspect was not properly considered by the Courts below, and an error was committed in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, learned counsel for the plaintiff submits that defendant Nos.1 to 4 agreed to sell the suit schedule property for valuable consideration. Accordingly, the plaintiff paid Rs.25,000/- towards the advance sale consideration amount. It was agreed that the balance sale consideration amount to be paid within four months from the date of execution of sale agreement. He submits that the plaintiff has been always ready and willing to perform his part of the contract. The plaintiff got issued a legal notice calling upon the defendant Nos.1 to 4 to receive the balance consideration amount and execute the registered sale deed. Despite service of notice, the defendants neither replied to the legal notice nor performed their part of the contract. He submits that defendant Nos.1 to 4 - 12 - NC: 2025:KHC:10402 RSA No. 571 of 2016 during the pendency of the suit sold the suit schedule property in favour of defendant No.5. The said sale transaction is hit by the doctrine of lis pendence, and to buttress his arguments, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of CHANDER BHAN (D) THROUGH LR SHER SINGH VS. MUKHTIAR SINGH & ORS., reported in 2024 SCR (CIV) 639. He submits that impugned judgments passed by the Courts below are just and proper and do not call for interference. Hence, on these grounds, he prays to dismiss the appeal. 7. This Court, on 18.07.2016, admitted the appeal to consider the following substantial questions of law : 1) Were the Courts below justified in decreeing the suit of the plaintiff for specific performance of the agreement dated 24.12.2004 as per Ex.P5 when defendant Nos.1 to 4 have specifically denied the execution of the said alleged agreement contending that they have executed the agreement in favour of the 5th defendant on 10.02.2004 which is prior to the agreement said to have been executed in favour of the plaintiff - 13 - NC: 2025:KHC:10402 RSA No. 571 of 2016 and subsequently executed the registered sale deed dated 13.06.2005 in favour of the 5th defendant? 2) Were the Courts below justified in decreeing the suit of the plaintiff, when both the courts have failed to exercise the discretionary power as contemplated under the provisions of Section 20 of the Specific Relief Act, 1963? 3) Whether the Lower Appellate Court is justified in modifying the judgment and decree of the trial Court and directing the appellant to execute the sale deed along with defendant Nos.1 to 4, when admittedly the plaintiff has not filed any appeal under the provisions of Section 96 of the Code of Civil Procedure or Cross Appeal as contemplated under the provisions of Order 41 Rule 22 of the Code of Civil Procedure, 1908? 4) Were the Courts below justified in decreeing the suit of the plaintiff when the plaintiff has failed to aver any specific prayer in the plaint? 8. Perused the records and considered the submissions of the learned counsel for the parties. - 14 - NC: 2025:KHC:10402 RSA No. 571 of 2016 9. Re-SUBSTANTIAL QUESTION OF LAW NO.1: The plaintiff, to prove his case examined himself as PW.1. He has deposed that defendant Nos.1 to 4 are the absolute owners of the suit schedule property. They agreed to sell the suit schedule property for valuable consideration and accordingly, the plaintiff paid a sum of Rs.25,000/- towards the advance sale consideration amount. It was agreed that the balance sale consideration amount shall be paid within four months from the date of execution of sale agreement and defendant Nos.1 to 4 shall get title deed transferred in their names from MUDA. 10. The plaintiff requested defendant Nos.1 to 4 to receive the balance consideration amount and to execute the registered sale deed. Despite the verbal requests, defendant Nos.1 to 4 did not come forward to perform their part of the contract. The plaintiff on 29.05.2005 i.e., before the sale agreement between defendant Nos.1 to 4 and defendant No.5, issued a public notice in ‘Andolana’ Kannada Daily Newspaper regarding his intention to - 15 - NC: 2025:KHC:10402 RSA No. 571 of 2016 purchase suit property and that he has entered into an agreement with defendant Nos.1 to 4 in respect of suit property. The plaintiff was issued a legal notice calling upon the defendants to receive the balance consideration amount and execute the registered sale deed on 28.03.2005, but the defendants neither replied to the legal notice nor performed their part of the contract by receiving the balance consideration amount. 11. Further, to prove the case of the plaintiff, the plaintiff has produced the documents Ex.P1 is the certified copy of the original registered sale deed dated 13.06.2005, which discloses that defendant Nos.1 to 4 executed the registered sale deed in favour of defendant No.5. Ex.P2 is the ‘Andolana’ Kannada Daily Newspaper dated 29.05.2005, which discloses that the plaintiff has issued a public notice regarding the purchase of the suit schedule property by entering into sale agreement with defendant Nos.1 to 4. Exs.P3 and 4 are encumbrance certificates, Ex.P5 is the original sale agreement dated - 16 - NC: 2025:KHC:10402 RSA No. 571 of 2016 24.12.2004, which discloses that defendant Nos.1 to 4 agreed to sell the suit schedule property for valid consideration to the plaintiff and received Rs.25,000/- towards the advance sale consideration. The said original sale agreement bears the thumb impression and signature of defendant Nos.1 to 4, and the signature of PW.2, who is said to be an attesting witness, is marked as Ex.P5(a). Ex.P6 is the office copy of the legal notice dated 28.03.2005, wherein the plaintiff issued a legal notice calling upon the defendant Nos.1 to 4 to receive the balance consideration amount and execute the registered sale deed. Ex.P7 is the unserved postal cover, Ex.P7(a) is the copy of the legal notice, Ex.7(b) to (d) are the postal acknowledgements, Ex.P8 is the sanction letter issued by MUDA, Mysore. 12. Further, the plaintiff also examined Sri. Huche Gowda as PW.2, who is an attesting witness to Ex.P5. He has deposed that defendant Nos.1 to 4 are the owners of the suit schedule property. They agreed to sell the suit - 17 - NC: 2025:KHC:10402 RSA No. 571 of 2016 schedule property for valuable consideration. The plaintiff paid Rs.25,000/- towards the advance sale consideration amount and the balance sale consideration amount to be paid within four months from the date of execution of sale agreement. During the cross-examination of this witness, except denying the suggestion of non-execution of Ex.P5, nothing has been elicited to disbelieve the evidence of PWs.1 and 2. 13. On the other hand, defendant No.1 examined himself as DW.1. He reiterated the written statement averments in the examination-in-chief. Defendant No.1 denied the execution of the sale agreement in favour of the plaintiff and also receiving of Rs.25,000/- towards the advance sale consideration amount. He has deposed that he had sold the suit schedule property in favour of defendant No.5 under the registered sale deed dated 13.06.2005 and delivered the possession of the suit schedule property in favour of defendant No.5. - 18 - NC: 2025:KHC:10402 RSA No. 571 of 2016 14. Defendant No.5 also examined herself as DW.2. She has deposed that defendant Nos.1 to 4 were the absolute owners of the suit schedule property. They sold the suit schedule property in favour of defendant No.5 and executed the registered sale deed dated 13.06.2005. Defendant No.5 was put in possession of the suit schedule property by defendant Nos.1 to 4. Defendant No.5 is in possession of the suit schedule property based on the registered sale deed executed by defendant Nos.1 to 4. The defendants, to prove their defense, have produced the documents Ex.D1 is the copy of the notice dated 20.06.2005, Ex.D2 is the encumbrance certificate, Ex.D3 is the original sanction letter issued by MUDA, Ex.D4 is the original registered sale deed dated 30.03.2005, which discloses that suit property was transferred by MUDA in favour of defendant Nos.1 to 4. Ex.D5 is the khata transfer certificate which discloses that suit schedule property was transferred in the name of defendant No.5 based on the registered sale deed dated 13.06.2005. Ex.D6 is the receipt issued by MUDA, Mysore, Ex.D7 is the certified copy of the - 19 - NC: 2025:KHC:10402 RSA No. 571 of 2016 registered sale deed dated 13.06.2005 which discloses that the suit property was sold by defendant Nos.1 to 4 in favour of defendant No.5, Ex.D8 is the receipt issued by MUDA, Mysore, Ex.D9 is the approved plan, and Ex.D10 is the license. 15. The perusal of the evidence on record, discloses that DW.1 has denied the execution of the sale agreement in favour of the plaintiff. The oral evidence of PW.1, PW.2 and, DW.1 and DW.2, discloses that defendant Nos.1 to 4 were the absolute owners of the suit schedule property, and they agreed to sell the suit schedule property in favour of the plaintiff on 24.12.2004 and on the date of execution of the sale agreement, the plaintiff paid Rs.25,000/- to defendant Nos.1 to 4 towards advance sale consideration amount and it was agreed that the balance sale consideration amount to be paid within four months from the date of execution of the registered sale deed. It is further agreed that defendant Nos.1 to 4 shall get the title deeds about the suit schedule property from MUDA, and - 20 - NC: 2025:KHC:10402 RSA No. 571 of 2016 then to convey the suit schedule property in favour of the plaintiff by receiving the balance sale consideration amount. Though the property was transferred in the name of defendant Nos.1 to 4 by MUDA, the defendants did not come forward to perform their part of the contract in terms of the sale agreement dated 24.12.2004. 16. The plaintiff, to prove that he has been ready and willing to perform his part of the contract, issued a legal notice marked as Ex.P6, which discloses that the plaintiff has stated that the plaintiff was/is always ready and willing to perform his part of contract and called upon the defendants to receive the balance consideration amount and execute the registered sale deed. The said notice was served on defendant Nos.1 to 3. Defendant No.4 avoided to receive the same. Despite the service of notice, the defendants neither replied to the legal notice nor complied with the terms and conditions of the legal notice. Thus, it is clear that the plaintiff has proved that defendant Nos.1 to 4 agreed to sell the suit schedule property for sale - 21 - NC: 2025:KHC:10402 RSA No. 571 of 2016 consideration of Rs.2,55,000/- and defendant Nos.1 to 4 received Rs.25,000/- towards the advance consideration amount and the plaintiff has been always ready and willing to perform his part of contract. 17. Defendant Nos.1 to 4 have specifically denied the execution of the sale agreement in favour of the plaintiff and contended that they had executed the sale agreement in favour of defendant No.5 on 10.02.2004. To demonstrate that defendant Nos.1 to 4 executed the alleged sale agreement in favour of defendant No.5 on 10.02.2004, the defendants have not produced the sale agreement alleged to have been executed on 10.02.2004. In the absence of the alleged sale agreement dated 10.02.2004, defendant No.5 failed to establish that there was alleged sale agreement said to have been executed by defendant Nos.1 to 4 in favour of defendant No.5 on 10.02.2004. As observed above, defendant No.5 failed to prove that defendant Nos.1 to 4 executed the sale agreement on 10.02.2004. In view of the above discussion, - 22 - NC: 2025:KHC:10402 RSA No. 571 of 2016 I answer the substantial question of law No.1 in the affirmative. 18. RE-SUBSTANTIAL QUESTION OF LAW NO.2: At the cost of repetition, the plaintiff has proved that defendant Nos.1 to 4 have executed the registered sale agreement in favour of the plaintiff on 24.12.2004 as per Ex.P5 and received the advance consideration of Rs.25,000/-. The plaintiff proved that he was/is always ready and willing to perform his part of the contract and was issued a legal notice as per Ex.P6 for execution of a registered sale deed. The trial Court, exercising the judicial discretion under Section 20 of the Specific Relief Act, has rightly granted the decree for specific performance of a contract. To consider the case on hand, it is necessary to examine Section 20 of the Specific Relief Act, 1963, which reads as follows: 20. Discretion as to decreeing specific performance.— (1)The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant - 23 - NC: 2025:KHC:10402 RSA No. 571 of 2016 such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2)The following are cases in which the court may properly exercise discretion not to decree specific performance:— (a)where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b)where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c)where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). - 24 - NC: 2025:KHC:10402 RSA No. 571 of 2016 Explanation 2.—The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3)The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4)The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. 18.1. As per Section 20 of the Specific Relief Act, the Court while exercising the discretion not to decree the specific performance, when the terms of the contract at the time of entering into a contract though give the plaintiff an unfair advantage over the defendant and further, if the specific performance is decreed, the defendant would involve hardship and further that the contract not rendering voidable. - 25 - NC: 2025:KHC:10402 RSA No. 571 of 2016 19. Admittedly, the perusal of the written statement filed by the defendants discloses that defendant Nos.1 to 4 have not pleaded regarding, the plaintiff has taken unfair advantage out of Ex.P5 i.e., the sale agreement dated 24.12.2004, and also not pleaded that at the time of entering into the sale agreement, the defendants did not foresee and its performance would involve so much hardship on the defendants. The trial Court has rightly exercised the discretion under Section 20 of the Specific Relief Act and granted the relief of specific performance of a contract. In view of the above discussion, I answer the substantial question of law No.2 in the affirmative. 20. RE-SUBSTANTIAL QUESTION OF LAW NO.3: The trial Court decreed the suit for specific performance of the contract and directed defendant Nos.1 to 4 to execute the registered sale deed in favour of the plaintiff by receiving the balance consideration amount, but did not direct defendant No.5 to execute the registered sale deed in favour of the plaintiff. Though the plaintiff did - 26 - NC: 2025:KHC:10402 RSA No. 571 of 2016 not challenge the findings recorded by the trial Court before the First Appellate Court by filing the cross objection, the First Appellate Court exercised the discretion Under Order 41 Rule 33 of CPC and moulded the relief. The First Appellate Court, in order to do complete justice, exercised discretion under Order 41 Rule 23 of CPC and moulded the relief. Though the plaintiff filed a suit in 2005, defendant Nos.1 to 4 sold the suit schedule property in favour of defendant No.5 under the registered sale deed dated 13.06.2005 during the pendency of the suit. The said sale transaction is hit by the doctrine of lis pendence. Defendant No.5, without verifying the title deed of defendant Nos.1 to 4, had purchased the said suit schedule property. The alienation made by defendants Nos.1 to 4 in favour of defendant No.5 would be covered by the doctrine of lis pendence. The Hon’ble Apex Court in the case of CHANDER BHAN (D) THROUGH LR SHER SINGH VS. MUKHTIAR SINGH & ORS (supra) held that the release deed executed after filing the suit for injunction and an alienation made subsequent to the filing of the suit - 27 - NC: 2025:KHC:10402 RSA No. 571 of 2016 covered by the doctrine of lis pendency and is illegal. The judgment relied upon by the learned counsel for the plaintiff is aptly applicable to the case on hand. In view of the above discussion, substantial question of law No.3 is answered in the affirmative. 21. RE-SUBSTANTIAL QUESTION OF LAW NO.4: The sale deed dated 13.06.2005 came to be executed after filing the suit, the sale transaction between defendant Nos.1 to 4 and 5 is void as per the law laid down by the Hon’ble Apex Court in the case of CHANDER BHAN (referred above). There is no restriction to seek specific prayer regarding to the registered sale deed dated 13.06.2005. The first appellate Court is justified in moulding the relief by exercising the jurisdiction under Order 41 Rule 33 and rightly passed the impugned judgment. I do not find any error in the impugned judgments. The impugned judgments passed by the Courts below are just and proper and do not call for - 28 - NC: 2025:KHC:10402 RSA No. 571 of 2016 interference. In view of the above discussions, I answer the substantial question of law No.4 in the affirmative. 22. Accordingly, I proceed to pass the following: ORDER i) The appeal is dismissed. ii) The Judgments and decrees passed by the Courts below are hereby confirmed. No order as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE SKS, RCK