- 1 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 83 OF 2023 (RO) BETWEEN: SRI. M. SRINIVAS S/O. MUNIRAJU AGED ABOUT 41 YEARS RESIDING AT NO.1916 COFFEE BOARD COLONY SHAMPURA MAIN ROAD KADUGONDANAHALLI VILLAGE BENGALURU - 560 045. …APPELLANT (BY SRI. Y. NAGARAJ, ADVOCATE) AND: 1. SMT. G.M. SUMITHRA W/O NAGARAJAIAH AGED ABOUT 66 YEARS R/A NO.138, 3RD E CROSS 2ND MAIN, KASTURI NAGAR BENGALURU - 560 043. 2. SMT. NAGARATHNAMMA W/O LATE PATALAPPA AGED ABOUT 55 YEARS R/A VEERAPURA VILLAGE KASABA HOBLI, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 DODDABALLAUPRA TALUK BENGALURU RURAL DISTRICT - 562 163. 3. SRI. G.M. KRISHNAPPA S/O LATE MUNIYAPPA AGED ABOUT 90 YEARS R/A KURUBARABEEDI, DEVITIPETE, CHIKKABALLAPURA - 562 101 …RESPONDENTS (BY SRI. S MADHUKAR DESHPANDE, ADVOCATE FOR R1; R2 IS SERVED AND UNREPRESENTED; VIDE ORDER DATED 19.02.2025, APPEAL AGAINST R3 IS ABATED) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.10.2022 PASSED IN RA.NO.13/2018 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, CHIKKABALALPURA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.07.2015 PASSED IN OS.NO.271/2006 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKBALLAPUR. DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT AND REMANDING THE MATTER BACK TO THE LEARNED TRIAL JUDGE, WITH A DIRECTION TO ALLOW THE APPELLANT TO IMPLEAD HERSELF AS DEFENDANT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 ORAL JUDGMENT Heard Sri. Nagaraj for Sri. C. Shankar Reddy, learned counsel for the appellant and Sri. Madhukar Deshpande, learned counsel for the respondents. 2. Plaintiff is the appellant in the second appeal challenging the validity of the Judgement passed in R.A. No.13/2028 whereby appeal came to be allowed and matter is remitted to the Trial Court for fresh disposal in accordance with law in O.S. No.271/2006. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: A suit for specific enforcement of an agreement to sell dated 13.09.2005 entered into by the respondents with the plaintiff came to be filed in O.S.No.271/2006. 4. It is contended that in respect of following immovable property, an agreement to sell came to be entered into on 13.08.2005 between the appellant and - 4 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 respondents and pursuant to the said sale agreement, sum of Rs.1,00,000/- was paid as earnest money and sale consideration was fixed Rs.7,35,000/-. When there was no compliance to the demands made by the plaintiff, notice came to be issued and despite issue of notice, there was no compliance and therefore suit came to be filed: SCHEDULE Agricultural land bearing Sy.No.6, total measuring 5 acres 11 guntas, out of which 3 acres, out of which 1 acre 20 guntas only (defendants share only) situated at Byranayakanahalli Village, Nandi Hobli Chikkaballapur Taluk and bounded as on : East by : Saraswathamma's land West by: Dinesh Beda's land North by: Road and remaining portion of same survey number South by: A.D. Narasimhaiah's land. 5. In the meantime, one more party to the suit was impleaded as second defendant and suit came to be decreed as the defendants failed to contest the suit properly. - 5 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 6. Being aggrieved by the same, donee of the suit property filed an appeal in R.A.No.13/2018. 7. Learned judge in the First Appellate Court after securing the records, noted that since the gift deed in respect of the suit property was a registered gift deed in favour of the appellant who was not a party to the suit, her rights are also to be adjudicated in the suit after impleading her as a party to the suit and remitted the matter to the Trial Court for fresh disposal after affording sufficient opportunities to the parties. 8. Validity of the said order is called in question in this appeal. 9. Sri. Nagaraj on behalf of Sri. C. Shankar Reddy, vehemently contended that once the decree passed in O.S.No.271/2006, is executed in execution case No.57/2015, First Appellate Court remitting the matter to the Trial Court for fresh disposal in accordance with law is impermissible. - 6 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 10. He also contended that the third party who is the Donee from second defendant filed a belated appeal and without proper reasons, huge delay of three years came to be condoned by the First Appellate Court and as such, the Order of the First Appellate Court is incorrect. 11. Per contra, Sri. Madhukar Deshpande, learned counsel for the contesting respondent supports the Judgment of the First Appellate Court by contending that the Gift Deed executed by the second defendant in favour of the appellant in R.A. No.13/2018 is a registered document. Therefore there is a public notice and the appellant in R.A.No.13/2018 ought to have been impleaded as a party to the suit and without importing the Donee as a party to the suit and decreeing the suit has resulted in miscarriage of justice which has been set- righted by the First Appellate Court and sought for dismissal of the appeal. - 7 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 12. Having heard the arguments of both sides, it is to be noted that suit was decreed without proper contest. 13. First defendant being the owner of the property having entered into an agreement with the plaintiff, subsequently sold the property in favour of the second defendant. 14. Plaintiff impleaded second defendant who is the subsequent purchaser as a party to the suit. In turn, second defendant said to have executed a registered Gift Deed in favour of one Smt. Sumithra. Said Smt. Sumithra is not made as a party to the suit. 15. Further, it is also contended by Smt. Sumithra that there was a improper conduct of the suit on account of the suit being transferred from one Court to another Court and they did not have the knowledge. - 8 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 16. Delay was condoned by the First Appellate Court by considered order which has not been challenged by the plaintiff. 17. Therefore, it should not now come in the way of upholding the Order of the First Appellate Court only on the ground that the huge delay of three years came to be condoned by the First Appellate Court. 18. The second point on which the impugned order judgement of the First Appellate Court being assailed is that the decree is already executed. 19. Since there was already a sale in favour of second defendant and further alienation by way of Gift Deed, mere execution of the sale deed in the execution petition pursuant to the decree of the Trial Court in O.S.No.271/2006 would not come in the way of adjudicating the suit on merits. - 9 - HC-KAR NC: 2025:KHC:37879 MSA No. 83 of 2023 20. Admittedly, the Donee is not made a party to the suit which has been set-righted by the First Appellate Court by affording opportunity for the plaintiff to implead the Donee Smt. Sumithra as a party to the suit. 21. Under such circumstances, grounds urged in the appeal memorandum are hardly sufficient to set-aside the Order of the First Appellate Court as plaintiff has been given an opportunity to implead the Donee as a party to the suit and Order for fresher adjudication. 22. Hence, following Order: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 25 CT: BHK