IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD DATED THIS THE 16th DAY OF JUNE2011 BEFORE ThE HON’BLE MR. JUSTICE K. GOVINDARAJULU RFA NO. 1279/2002 BETWEEN 1. Vithal S/o Shivarm Ekbote, Age: Major, 0cc: Business, RIo 288, Arvind Nagar, Hubli. 1(a) SmtPrameelabai W/o Vithal Ekbote, Age: 55 years, 0cc: Business & House hold. 1(b) Sri. Praveen S/o Vithal Ekbote, Age: 34 years, 0cc: Business. 1(c) Smt. Vaishali W/o Sanjay Rokhade Age: 31 years, 0cc: Business. 1(d) Sri. Vinod Sb Vithal Ekbote Age: 28 years 0cc: Business 1(e) Kumari Suprita D/o Vithal Ekbote Age: 26 years, 0cc: House hold. AU are R/o 288, Arvind Nagar, Hubli. Appellants (By Sri.Dinesh M Kulkarni, Adv.) AND Sri. Mohansa S/o Hanumantsa Bhure Since deceased, by his LRs 1(A) Smt Sunanda W/o Mohansa Bhure, Age: 36 years, 0cc: House hold, R/o Graceless Chavi, Sherodom, Post-Navellan, Margaon, Goa-4373 1. 2. Hanumath S/o Mahannsa Bhure, Age: 19 years, 0cc: Student, R.o Graceless-Chawl, Sherodom, Post-Navelin, Margaon Goa0403732. 3. Kumar Arjun S/o Mohansa Bhure, Age: 17 years, 0cc: student Since minor represented by Guardian mother Smt.Sunanda W/o Mohansa, Bhure, Age about 36 years, 0cc: Household, R/o Graceless-chawl, Sherodom. Post-Navellin Margoan Goa-403732. 4. Srinivas S/o Mohansa Bhure, Age: 15 year, 0cc: student Since minor represented by Guardian mother Smt.Sunanda W/o Mohansa, Bhure, Age about 36 years, 0cc: Household. R/o Graceless-chawl, Sherodom, Post-Navellin Margoan Goa-403:732. 5. Ganesh S/o Mohansa Bhure, Age 13 years 0cc: student, Guardian mother Smt.Sunanda W/o Mohansa, Bhure, Age about 36 years, 0cc: Household, R/o Gracelesschawl, Sherodom, Post-Navellin Margoan Goa-403732. Respondents (By Sri.Sachin S Magadum for Vigneshwar S Shastri, Adv. for R1(a) , R2 and R3 served. R4 & R5 m/g Rept by R1(A)) This RFA is filed u/o 41 Rule 1 R/w Section 96 of CPC against the judgment and Decree dated 10.10.2002 passed in 0.S.No.237/ 1997 on the file of the Prl. Civil Judge(Sr.Dn.), Hubli, decreeing the suit for specific performance. This RPA coming on for final hearing this day, the Court delivered the following: JUDGMENT Plaintiff in 0.5. 237/1997 on the file of the Prl. Civil Judge(Sr.Dn.), Hubli is the appellant. 2. During the pendencv of the appeal, the appellant being dead, the LRs. are added. Similarly during the pendency of the suit, the defendant No. 1 being dead, the LRs. are arrayed. 4 3. The case of the plaintiff is for specific performance of an agreement of sale dated 9.6.1994. According to the terms of the agreement of sale 30 guntas out of survey No.6-/4(a)/ 1 is agreed to be sold by the defendant to the plaintiff for a consideration of Rs.1,01,000/-. It is the further case of the plaintiff that as on the date of the agreement, a sum of Rs.26,000/- is paid to the defendant No.1. Thereafter, agreement of sale is executed by defendant No.1. It is also further pleaded by the plaintiffs that prior to the agreement of sale, the defendant No.1 has raised loan by mortgaging the property with S.S.K. Co-operative Bank. The said bank has brought the property for auction, then the plaintiff has paid Rs.44,778/- avoided the auction. Thereafter, the plaintiff paid a sum of Rs.5,222/-. The balance that was payable was only Rs.26,000/-. The plaintiff has called upon the defendant to execute the sale deed by receiving the balance sale consideration. The defendant failed to do so. So, the plaintiff seeks for specific performance. 4. The defendant No. 1 has entered filed written statement, deny the claim of the plaintiff. On the basis of the pleadings issues are framed. PWs. 1 to 5 are examined. Exhibits P1 to P16 are marked. The learned trial Judge has granted refund of the money with interest. 5. The learned advocate for the plaintiff submits that the very fact that plaintiff pays Rs.44,778/- when the property was brought for auction would prohabilise that the plaintiff has a pre-existing right in pursuance of an agreement of sale in such a situation, there is no rebuttal evidence on behalf of the defendants. So, the approach of the learned trial Judge is not proper. So, pray for decreeing the suit as prayed for granting specific performance of the agreement of sale. 6. The learned advocate Sri Sachin S Magdum submits that in the facts of the case, the agreement though disputed, no evidence being adduced, prays for orders. 7. In the light of the above, the point that arise for consideration by this court is as under: 4 6 ‘Whether the plaintiff is entitled for specific performance ofthe agreement ofsale.? 8. The evidence adduced by the plaintiff is that the defendant No.1 has entered into agreement of sale to sell 30 guntas out of 19/20 guntas in survey No.60/4/Al and that the defendant No.1 has received Rs.26,000/-. This is supported with the assertions found in Ex.Pl. No rebuttal evidence is placed to disbelieve the version of evidence of PW 1. So, the agreement of sale pleaded by the plaintiff is proved. It is the further case of the plaintiff that the property was brought for sale. A sum of Rs.44,778/- is paid to the SSK Co-operative Bank. The bank notice and bank chaflan are marked as Ex.P2 and P3, so payment asserted go unchallenged. Further supplementary agreement of sale is marked as Ex.P4, it supports the case of the plaintiff. So, the plaintiff has proved money being paid in pursuance of the earlier agreement of sale. 8. There being no defence, adduced by the defendant, the approach of the learned trial Judge in granting only money decree is not proper. The total consideration being 4 7 Rs.1,O1,000/-, consideration paid is nearly Rs.76,000/-, the balance is only Rs.26,000/-. So, the approach of the learned trial Judge in partly decreeing the suit calls for interference. The judgment is set aside. The following order is passed. The suit is decreed as prayed for. The plaintiff is directed to deposit the balance sale consideration within two weeks and get the sale deed executed in accordance with law. On the failure of the defendant to execute the sale, he has liberty to move the court for executing the decree. 3d,.. P1*?pv