- 1 - NC: 2025:KHC:12529 RFA No. 1357 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1357 OF 2021 (SP) BETWEEN: SMT. H. G. SUDHA, AGED ABOUT 53 YEARS, W/O. SRI. K. R. MANJUNATH, R/AT NO.D-8/2, "RAKASHRI", BEHIND RAMVILAS ROAD, MYSURU - 570 004. …APPELLANT (BY SRI. Y K NARAYANA SHARMA, ADVOCATE AND SRI. Y.V. PRAKASH, ADVOCATE) AND: 1. SRI. N. MAHADEVA, S/O. LATE NANJAIAH, AGED ABOUT 71 YEARS, 2. SMT. PARVATHAMMA W/O SRI N MAHADEVA, AGED ABOUT 65 YEARS 3. SMT. LAKSHMI D/O SRI. N. MAHADEVA, AGED ABOUT 45 YEARS, 4. SRI. PRAKASH S/O SRI N MAHADEVA, AGED ABOUT 43 YEARS, Digitally signed by AASEEFA PARVEEN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12529 RFA No. 1357 of 2021 5. SRI. LOKESHA S/O SRI N MAHADEVA AGED ABOUT 41 YEARS, 6. SRI. N. CHANDRA S/O SRI N MAHADEVA AGED ABOUT 39 YEARS THE RESPONDENTS NO. 1 TO 6 ARE RESIDING AT HOUSE NO. 304/4, KURUBARA BEEDHI, KADAKOLA VILLAGE, MYSURU TALUK - 571 131. …RESPONDENTS (BY SMT. MANJULA B.N., ADVOCATE FOR SRI. R.C. NAGARAJ, ADVOCATE FOR R2, R3, R5 AND R6; R4 SERVED BUT UNREPRESENTED; V/O. DATED 23.03.2023, NOTICE TO R1 IS DISPENSED WITH) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC PRAYING TO AGAINST THE JUDGMENT AND DECREE DATED 10.11.2021 PASSED IN O.S No.5/2019 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MYSURU, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR - 3 - NC: 2025:KHC:12529 RFA No. 1357 of 2021 ORAL JUDGMENT This appeal by the appellant/plaintiff in O.S.No.5/2019 on the file of the IV Additional Senior Civil Judge and JMFC, Mysuru is directed against the impugned judgment and decree dated 10.11.2021 passed by the trial Court which rejected the claim for specific performance made by the appellant/plaintiff against the respondents/defendants and instant directed the respondents/defendants to refund the advance sale consideration of Rs.10,00,000/- paid by the appellant/plaintiff to the respondents/defendants together with interest at 6% p.a. from the date of suit till realization. 2. A perusal of the material on record would indicate that the appellant entered in to an sale agreement dated 17.06.2017 with the respondent Nos.1 to 6/defendant Nos.1 to 6 who agreed to sell the suit schedule immovable property in favour of the appellant/plaintiff for a total consideration of - 4 - NC: 2025:KHC:12529 RFA No. 1357 of 2021 Rs.14,00,000/-. In pursuance of the said sale agreement, the appellant/plaintiff paid an advance of Rs.10,00,000/- to the respondents/defendants who did not come forward to execute the sale deed and as such the appellant/plaintiff instituted the aforesaid suit for specific performance and other reliefs in relation to suit schedule immovable property. 3. It is an undisputed fact borne out from the material on record that defendant No.1 - Sri.N.Mahadeva is none other than the husband of defendant No.2 - Smt.Parvathamma, while defendant Nos.3 to 6 are their children, all of whom had executed the aforesaid sale agreement in favour of the appellant/plaintiff. 4. The defendant No.1 - N.Mahadeva remained exparte and did not contest the suit and hence, this Court vide order dated 23.03.2023, dispensed with notice to the defendant No.1/respondent No.1. 5. In their written statement, defendant Nos.2 to 6 /respondent Nos.2 to 6 admitted all the plaint averments - 5 - NC: 2025:KHC:12529 RFA No. 1357 of 2021 and interalia contended that since the khatha of the suit schedule property stood in the name of defendant No.1, they are not in a position to execute the sale deed in favour of the appellant/plaintiff. 6. In this context, it is relevant to state that except putting forth the aforesaid contention as regarding the defendant No.1 missing and not being available to execute the sale deed, the entire plaint averments as regards execution of the sale agreement, receipt of sale consideration etc., were not disputed by the defendant Nos.2 to 6. The appellant/plaintiff examined himself as Pw.1 and documentary evidence at Ex.P1 to P.10 were marked. The defendant Nos.2 to 6 neither cross examined Pw.1 nor adduced oral or documentary evidence despite which the trial Court came to a conclusion that since the khatha stood in the name of defendant No.1, decree for specific performance cannot be passed in favour of the appellant/plaintiff by passing the impugned judgment and decree which is assailed in the present appeal. - 6 - NC: 2025:KHC:12529 RFA No. 1357 of 2021 7. I have heard learned counsel for the appellant and learned counsel for respondent Nos.2 to 6 and perused the material on record. 8. As stated supra notice to respondent No.1/defendant No.1 was dispensed with by this Court vide order dated 23.03.2023. 9. A perusal of the impugned judgment and decree and the material on record would indicate that the execution of the sale agreement by defendant Nos.1 to 6, receipt of advance of Rs.10,00,000/- by the defendants from the plaintiff etc., are borne out not only from the evidence on record but also from the pleadings of the parties. As stated supra, the only reason for the trial Court to deny the relief of specific performance is by coming to the conclusion that khatha stood in the name of defendant No.1 and it is not possible to execute decree for specific performance in the absence of defendant No.1. 10. In my considered opinion, the trial Court having answered all the issues in favour of appellant/plaintiff - 7 - NC: 2025:KHC:12529 RFA No. 1357 of 2021 clearly fell in error in failing to appreciate that mere non- availability of defendant No.1 for the purpose of execution of the sale deed in pursuance of decree for specific performance cannot be made as a basis to deny the relief of specific performance especially when the appellant/plaintiff was otherwise entitled to decree for specific performance. 11. Under these circumstances, having regard to the material on record which undisputedly indicates the execution of the sale agreement, receipt of advance sale consideration etc., I am of the considered opinion that the impugned judgment and decree passed by the trial Court deserves to be set aside and decree for specific performance be passed in favour of the appellant/plaintiff by issuing appropriate directions. 12. In the result, the following: ORDER (i) The appeal is hereby allowed. - 8 - NC: 2025:KHC:12529 RFA No. 1357 of 2021 (ii) The impugned judgment and decree is hereby modified. (iii) Respondents/defendants are directed to execute the sale deed in favour of the appellant/plaintiff within a period of 3 months from the date of the appellant paying/depositing the balance sale consideration of Rs.4,00,000/- to the respondents/defendants. (iv) Draw decree accordingly. Sd/- (S.R.KRISHNA KUMAR) JUDGE NS CT:TSM List No.: 1 Sl No.: 10