- 1 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN MISCELLANEOUS FIRST APPEAL NO. 5457 OF 2023 (CPC-) BETWEEN: SRI. K. NARAYANA REDDY S/O LATE KONAPPA REDDY, AGED ABOUT 65 YEARS, RESIDING AT NO.141/7/8, 4TH MAIN, 3RD PHASE, KATHRIGUPPE MAIN ROAD, BENGALURU - 560 085. …APPELLANT (BY SRI. V. B. SHIVAKUMAR, ADVOCATE) AND: 1. SRI. RAJANNA. J S/O LATE SRI. JANGAMAIAH, AGED ABOUT 57 YEARS, RESIDING AT NO.10, GOPALKRISHNA LAYOUT, SUBRAMANYAPURA POST, BENGALURU - 560 061. AND ALSO SRI. RAJANNA J WORKING AS ASSISTANT EXECUTIVE ENGINEER Digitally signed by VEDAVATHI A K Location: High Court of Karnataka - 2 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 MINOR IRRIGATION DEPARTMENT, HAVING OFFICE AT 5TH FLOOR, JAYANAGAR COMMERCIAL COMPLEX, BENGALURU - 560 004. 2. SRI. B. V. MANJUNATH AGED ABOUT 42 YEARS S/O LATE VENKATAPPA R/AT NO.27, CHEEMASANDRA, VIRGONAGAR POST, BENGALURU - 560 049. 3. SMT. K. SHILPA AGED ABOUT 46 YEARS, D/O H K KRISHNAPPA W/O SRI NAGARAJ R/AT NO.45/1 NEAR KARTHIKEYA MAHAL, CHEEMASANDRA VIRGONAGAR POST, BENGALURU - 560 049. …RESPONDENTS (BY SRI. N. S. SHESHADRI, ADVOCATE FOR R2 & 3; R1-SERVED) THIS MFA IS FILED U/O 43 RULE 1(q) OF CPC, AGAINST THE ORDER DATED:21.07.2023 PASSED ON IA NO.1 IN OS.NO.3754/2022 ON THE FILE OF THE XLIV ADDITIONAL CITY CIVIL JUDGE AND SESSIONS JUDGE, (CCH NO.27), BENGALURU, C/c. XLIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING IA NO.1 FILED U/O.38 RULE 5 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 CORAM: HON'BLE MR JUSTICE K.NATARAJAN ORAL JUDGMENT This appeal is filed by the appellant/plaintiff as against the order passed by the Trial Court under Order 38 Rule 5 of CPC., for rejecting the prayer of the appellant for attaching the property of the defendant in respect of Sy.No.74, measuring 1 acre 17 guntas, situated at Katamnallur village, Bidarahalli Hobli, Bangalore East Taluk. 2. Heard the arguments of learned counsel for the appellant and learned counsel for the respondent No.2 and 3. The respondent No.1 served and unrepresented. 3. The case of the plaintiff before the Trial Court is that the plaintiff filed the suit for recovery of Rs.72 lakhs from the respondent No.1/defendant -Rajanna on the ground that the plaintiff had lent loan of Rs.50 lakhs to the defendant No.1 for the purpose of construction of the apartment. And the defendant agreed to repay the said amount by adding some profit. Later the defendant said to be assured to give a flat bearing No.407, for total sale consideration of Rs.29,13,000/- to be adjusted towards the total outstanding dues as on that - 4 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 date and sought some time to repay the remaining balance owed by the defendant but it was not paid. Later four cheques were issued by the defendant, two cheques for Rs.20 lakhs and another two cheques for Rs.15 lakhs, but when the said cheques were presented, the cheques were returned unpaid due to fund insufficient. The defendant also said to be executed promissory note. Hence, the plaintiff filed the suit for recovery of money from the defendant-Rajanna. 4. Along with the suit the appellant also filed I.A.No.1 under Order 38 Rule 5 of the CPC., for attachment of application schedule property before the judgment. The Trial Court by passing impugned order dismissed the application. Hence, the appellant is before this court. 5. Learned counsel for the appellant has contended that the Trial Court committed an error in dismissing the application, even though the defendant claimed counter claim and also re-covey the property which was already executed in the name of the plaintiff and he also filed suit for specific performance of contract for executing the sale deed in his favour. The Trial Court considering the arguments of the - 5 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 learned counsel for the respondent, dismissed the application mainly on the ground that the defendant has produced the documents and also he is a business man, defendant have the capacity to pay the money and therefore there is no need to attach the property and also stated there is a counter claim by the side of defendant. There is no need to attach the property. Hence, the application is dismissed and feeling aggrieved by the same the plaintiff/appellant filed appeal before this court. 6. However, the learned counsel for the appellant argued the matter against the order passed by Trial Court. During the pendency of the appeal this court granted interim order by attaching the property measuring in Sy.No.74 measuring 1 acre 17 guntas by order dated 11.08.2023. Later the respondent Nos.2 and 3 appeared before this court and impleaded themselves as parties. It is contended by the counsel that the defendant No.1- Rajanna is not at all owner of the property which required to be attached. The respondent Nos.2 and 3 are the owners, they purchased the property from their owner Vijay Kumar and Vijay Kumar was purchased the same from Krishnappa and in turn Krishnappa purchased the same from Rajanna in the year 1993 itself. Thereafter, the very - 6 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 Rajanna executed the confirmation deed in favour of the respondent Nos.2 and 3 on 28.03.2023 and the defendant- Rajanna has already lost the property in the year 1983 itself and there is no question of attaching the said property. If at all any other property is available it can be requested the court for attaching the same. Hence, prayed for vacating the interim order. 7. Having heard the arguments and perused the records, now the point that arises for my consideration is; Whether the order of Trial Court call for interference for having rejected the attachment before the judgment? 8. On perusal of the records, admittedly the plaintiff filed the suit for recovery of money of Rs.72 lakhs, based upon the cheques issued by the defendant and also on demand promissory note. The defendant also filed written statement along with the counter claim under Order VIII Rule 6A of CPC., seeking re-conveyance of the sale deed in favour of the defendant apart from Specific Performance of Contract, which reveals there is a money transaction between the plaintiff and - 7 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 defendant. However, after arguments by the learned counsel for the appellant this court granted injunction against the property bearing Sy.No.74, measuring 1 acre 17 guntas said to be belongs to the defendant. On perusal of the records produced by the impleading applicants/ the respondents which clearly reveals that the suit schedule property has already been sold long back by the said defendant in the year 1983 itself. Thereafter the purchaser -Krishnappa also said to be sold the said property to one Vijay Kumar on 16.08.1990. Thereafter the said Vijay Kumar also sold the said property to the present respondent Nos.2 and 3 on 06.03.2023 by way of registered sale deed and subsequently the confirmation deed also executed by the very defendant -Rajanna by receiving Rs.80 lakhs from the present respondent Nos.2 and 3 by way of cheques. 9. These documents clearly reveals the defendant - Rajanna already lost the right, title and interest over the property in the year 1983 itself. Thereafter, three sale deeds have been effected subsequently, therefore question of attaching the same property under the attachment before the judgment cannot be allowed. Though the Trial Court has stated - 8 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 there is various sources for attaching property but no sources produced by the defendant in the Trial Court. Such being the case the Trial Court has committed an error in stating that the defendant is disbursement there is other sources. However, during the argument, the appellant counsel brought to the notice that the defendant is a Government Servant working as Assistant Executive Engineer, working in the Government Department. Such being the case there is other modes available to the appellant for seeking any attachment. Such being the case, the order of the Trial Court though it is not correct. However, I am of the view the land is already sold, it is not vested with the defendant to attach the same. Therefore, the order cannot be interfere except in respect of the said schedule property. Accordingly, the appeal is allowed in part. The order of the Trial Court is hereby modified in respect of attaching the property. However, the matter is remitted back for fresh consideration, if any other source of property filed by the appellant/plaintiff then the court can proceed to pass the order. - 9 - NC: 2025:KHC:7349 MFA No. 5457 of 2023 The interim order passed by this court on 11.08.2023 attaching the Sy.No.74 measuring 1 acre 17 guntas situated at Katamnallur village, Bidarahalli Hobli, Bangalore East Taluk, is hereby vacated. Sd/- (K.NATARAJAN) JUDGE SRK List No.: 1 Sl No.: 45 CT:SK