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2025 DAILYLAW 79922 (KAR)

SRI. B. L NAGARAJ GUPTA v. SMT.B.A. NAGARATHANA

WP/908/2024 · 2025-10-30

S Vishwajith Shetty

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Judgment text

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- 1 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 908 OF 2024 (GM-CPC) BETWEEN: 1. SRI. B. L NAGARAJ GUPTA, AGED ABOUT 76 YEARS, S/O LATE LAKSHMI NARAYANA SHETTY, R/AT NO 540/394, TANK ROAD, MAGADI TOWN, RAMANAGARA DISTRICT PIN CODE - 562 120. SINCE DECEASED BY HIS LRS 1(A) B.N.CHANDRASHEKAR, S/O LATE B.L.NAGARAJ GUPTA, AGED ABOUT 50 YEARS, RESIDENT AT NO.540/599, TANK ROAD, MAGADI TALUK, RAMANAGARAM - 562 120. 1(B) B.N. MANJUNATH S/O LATE B.L. NAGARAJ GUPTA AGED ABOUT 47 YEARS, RESIDING AT NO. 46, GROUND FLOOR, VARAHA RESIDENCY, GURUDHATH LAYOUT, NEAR DATTA TEMPLE, HOSKEREHALLI, BSK, 3RD STAGE, BANGALORE SOUTH TALUK. …PETITIONERS (BY SRI. INDU SHEKAR B T., ADVOCATE) AND: 1. SMT.B.A. NAGARATHANA, W/O ANJANEYA GUPTA, AGED ABOUT 72 YEARS, Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 R/AT TANK ROAD, MAGADI TOWN, MAGADI TALUK, RAMANGARA DIST - 562 120. 2. SRI CHANNABASVARAJU M S SINCE DECEASED BY HIS LS NALINA DEVI, W/O LATE CHANNABASAVARAJU M S, AGED ABOUT 58 YEARS, 3. SMT KAVITHA M C, D/O LATE CHANNABASAVARAJU M S, AGED ABOUT 34 YEARS, 5. SMT. RANJITHA M C, D/O LATE CHANNABASAVARAJU M S, AGED ABOUT 31 YEARS, RESPONDENTS NO. 2 TO 4 ARE R/AT NO 703, ARALPETE CROSS, COTTONEPT CROSS, BESIDE BASAVESWARA TEMPLE MAGADI TOWN, MAGADI TALUK, RAMANAGARAM DIST - 562 120. …RESPONDENTS (BY SRI. P.M.GOPI, ADVOCATE FOR SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR R1; V/O DTD 12.02.2024, NOTICE TO R2 TO R4 IS D/W) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN F.D.P NO. 06/20 PENDING ON THE FILE OF THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, AT MAGADI AND SET ASIDE/ QUASH THE ORDERS DTD 29.11.23 FOR HAVING DISMISSED THE IA NO. 4 FILED BY THE PETITIONER PRODUCED UNDER ANNEXURE-A AND THEREBY ALLOW THE APPLICATION AT IA NO. 4 FILED BEFORE THE TRIAL COURT BY THE PETITIONER HEREIN AND PERMIT THE PETITIONER TO COME ON RECORD AS RESPONDENTA AND ETC., - 3 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER This writ petition under article 227 of the Constitution of India is filed with a prayer to set aside the order dated 29.11.2023 passed on I.A.No.IV in F.D.P.No.6/2020 by the Court of Principal Civil Judge and JMFC at Magadi. 2. Heard the learned counsel for the parties. 3. Facts leading to filing of this writ petition as revealed from the records are Late.Byradevaru is the absolute owner of the suit schedule property. The suit schedule property was mortgaged to Late.Channabasavaraju.M.S by heirs of Late.Byradevaru. Respondent Nos.2 to 4 in this writ petition are the legal representatives of Late.Channabasavaraju.M.S. suit in O.S.No.2/1993 was filed by respondent No.1 herein namely Smt.B.A.Nagarathana for redemption of the mortgage deed dated 06.10.1976, which was executed by - 4 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 the heirs of Late.Byradevaru in favour of Late.Channabasavaraju.M.S., contending that she had purchased the suit schedule property under registered sale deed dated 01.02.1992 from the sons and grandsons of Late.Byradevaru. The said suit was decreed on 28.11.1996 and thereafter, Ex.No.4/1997 was filed before the Jurisdictional Civil Court to execute the decree passed in O.S.No.2/1993. In the said proceedings petitioner had entered appearance as an objector and had brought to the notice of the executing Court that no final decree was drawn, pursuant to the preliminary decree passed in O.S.No.2/1993 and the property purchased by the decree holder, Smt.B.A.Nagarathana are different. In view of the objections raised by the petitioner herein, the execution petition in Ex.No.4/1997 was dismissed as not maintainable by order dated 06.04.2013. The said order was questioned by Smt.B.A.Nagarathana in W.P.No.24551/2013 and the writ petition was disposed of reserving liberty to Smt.B.A.Nagarathana to initiate final decree proceedings and it was also observed that any - 5 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 observation made by the Executing Court will not bind either of the parties and all contentions are left open to be decided in the contemplated final decree proceedings. Subsequently, the decree holder in O.S.No.2/1993 namely Smt.B.A.Nagarathana, had filed F.D.P.No.6/2020 before the Trial Court and in the said proceedings petitioner had filed I.A.No.IV under Order I Rule 10(2) of CPC to implead him as a respondent. The said application was opposed by Smt.B.A.Nagarathana and the Trial Court vide the order impugned rejected the said application. Being aggrieved by the same petitioner is before this Court. 4. Learned counsel for the petitioner having reiterated the grounds urged in this petition submits that Sri.Channabasavaraju.M.S., who is the mortgagee has executed a registered deed of assignment of mortgage on 18.03.1985 in favour of petitioner and subsequently, the legal representatives of Late.Byradevaru have also executed agreement for sale dated 30.04.1986, agreeing to treat the mortgage amount as the advance amount - 6 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 under the agreement for sale and agreed to receive the balance sale consideration under the agreement sale dated 30.04.1986 on the date of registration of sale deed. He submits that petitioner had filed O.S.No.287/2003 seeking the relief of specific performance and the said suit was dismissed and appeal against judgment and decree passed in O.S.No.287/2003 is pending in R.A.No.45/2020. He submits that Smt.B.A.Nagarathana was party defendant No.4 in the said suit and in the said suit there is a specific finding recorded that Smt.B.A.Nagarathana has not purchased the suit schedule property under the registered sale dated 01.02.1992 from the sons and grandsons of Late.Byradevaru. The said finding has not been challenged by Smt.B.A.Nagarathana till date. This Court while disposing of W.P.No.24551/2013 has clearly observed that finding recorded by the Executing Court will not bind either of the parties and all contentions urged are left open to be decided in the contemplated final decree proceedings. In view of the said observation, the petitioner becomes a necessary party to the final decree proceedings. - 7 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 5. Per contra, learned counsel appearing for respondent No.1 has opposed the prayer made in the petition. He submits that petitioner is not a party to the preliminary decree and therefore, he cannot be permitted to get impleaded in the final decree proceedings. He submits that O.S.No.287/2003 which is filed by the petitioner for the specific performance of the agreement of sale said to have been executed in his favour by the legal representatives of Late.Byradevaru has been dismissed and in the said suit, it is held that petitioner has failed to prove the execution of the agreement for sale dated 30.04.1986. He submits that the finding recorded by the Executing Court in Ex.No.4/1997 is of no relevance, since this Court, while disposing of W.P.No.24551/2013 has made it clear that any observation made in the said order will not be bind either of the parties. Accordingly, he prays to dismiss this petition. 6. Respondent No.1 herein has filed O.S.No.2/1993 against the mortgagee namely Sri.Channabasavaraju.M.S - 8 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 with a prayer for granting a judgment and decree of redemption of the mortgage deed dated 06.10.1976 executed by the legal representatives of Late.Byradevaru in favour of Sri.Channabasavaraju.M.S. The said suit was decreed on 01.01.1993. It is relevant to note here that in Ex.No.4/1997 which was filed by Smt.B.A.Nagarathana to execute the decree passed in O.S.No.2/1993, petitioner was permitted to come on record as an objector and he had raised a specific objection that the property mortgaged to Sri.Channabasavaraju.M.S. and the property purchased by the decree holder from the legal representatives of Late.Byradevaru are totally different. This contention was appreciated by the Executing Court and a specific finding was recorded that the property mortgaged and the property purchased by the decree holder namely Smt.B.A.Nagarathana are different. Smt.B.A.Nagarathana had challenged the said order in W.P.No.24551/2013 and the said petition was dismissed as withdrawn with liberty to Smt.B.A.Nagarathana to initiate final decree proceedings. It was also observed that - 9 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 observations made by the Executing Court in the order passed in Ex.No.4/1997 shall not bind either of the parties and all contentions are left open to be decided in the contemplated final decree proceedings. The petitioner is party respondent No.2 in W.P.No.24551/2013. Therefore, petitioner has been virtually granted liberty to urge the contention raised by him in Ex.No.4/1997, in the contemplated final decree proceedings sought to be initiated by Smt.B.A.Nagarathana for which liberty was granted by this Court in W.P.No.24551/2013, as sought for by her. 7. It is also relevant to note here that petitioner herein has filed a separate suit in O.S.No.287/2003 in which the legal representatives of Late.Byradevaru were arrayed as defendant Nos.1 and 2 and the mortgagee Sri.Channabasavaraju.M.S was arrayed as defendant No.3 and the decree holder in O.S.No.2/1993 namely Smt.B.A.Nagarathana was arrayed as defendant No.4. In the said suit, defendant No.4 had filed written statement - 10 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 contending that she had purchased the suit schedule property under the registered sale deed dated 01.02.1992 from the sons and grandsons of Late.Byradevaru. Therefore, a issue was framed in that regard in O.S.No.287/2003 and the same has been answered in the negative and in effect, it is held that defendant No.4 in O.S.No.287/2003, namely Smt.B.A.Nagarathana has failed to prove that she had purchased the suit schedule property under the registered sale dated 01.02.1992 from the sons and grandsons of Late.Byradevaru. Undisputedly, the said finding recorded in O.S.No.287/2003 has attained finality and Smt.B.A.Nagarathana has not challenged it till date. The petitioner herein who is the plaintiff in O.S.No.287/2003 has challenged the said judgment and decree passed in the said suit dated 06.07.2020 in R.A.No.45/2020, which according to the learned counsel for the petitioner is pending consideration. 8. Considering the aforesaid aspects of the matter, I am of the opinion that since there are findings recorded - 11 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 in Ex.No.4/1997 and also in O.S.No.287/2003 that Smt.B.A.Nagarathana has not purchased the properties which are subject matter of the mortgage deed which was executed in favour of Sri.Channabasavaraju.M.S, under the sale deed which were executed in her favour by the legal representatives of Late.Byradevaru and since this Court in W.P.No.24551/2013 has observed that contentions urged in the said petition are left open to be decided in the contemplated final decree proceedings, I am opinion that petitioner who was party respondent No.2 in W.P.No.24551/2013 is just and necessary party to the final decree proceedings in F.D.P.No.6/2020 pending before the Court of Principal Civil Judge at Magadi. The Final decree proceedings is a continuation of the suit and a suit comes to a logical end only when a final decree is drawn. Therefore for the purpose of proper adjudication of the dispute involved in O.S.No.2/1993 which is now continued in the final decree proceedings, the petitioner is a just and necessary party and the Trial Court has - 12 - HC-KAR NC: 2025:KHC:43879 WP No. 908 of 2024 therefore erred in rejecting I.A.No.IV filed under Order I Rule 10(2) of CPC. According to the following: ORDER (i) The writ Petition is allowed. (ii) The order impugned dated 29.11.2023 passed on I.A.No.IV in F.D.P.No.6/2020 by the Principal Civil Judge and JMFC at Magadi is set aside and the prayer made in the said application is granted. Pending I.A's, if any, do not survive for consideration and the same are accordingly, disposed of. Sd/- (S VISHWAJITH SHETTY) JUDGE KVR List No.: 1 Sl No.: 13