P.M. GOPI Vs. B.M. VENKATALAKSHMAMMA

JUDGEMENT

(1.) This Revision Petition is filed against the order passed in O.S. No. 4715/2012 by the XXXVII Addl. City Civil Judge, Bangalore, dated 5.9.2013 on I.A. No. 6 filed under Order 2 Rule 2 of CPC filed by the defendant-petitioner to dismiss the suit filed by respondents 1 to 6 herein on the basis of findings given by the said Court in Execution Petition No. 411/2011.

(2.) Petitioner is stated to be the purchaser of the suit schedule property from his vendor by name Gururaj. Incidentally, it appears, Gururaj claims that he is the son of Narasaiah and Narasaiah had gifted the property in favour of Gururaj. Respondents 1 to 6 are claiming to be the wife and children of late Narasaiah. Petitioner filed Execution Petition No. 411/2011 before the Executing Court in respect of execution of decree for specific performance which was obtained by him in O.S. No. 8753/2011. The respondents 1 to 6 resisted the same by filing an application under Order 21 Rule 97 r/w Section 151 of CPC. The Execution Court after raising several issues for consideration, dismissed the said application negating the contentions of the respondents. However, a separate suit in O.S. No. 4715/2012 came to be filed by respondents 1 to 6 on the very same day of filing of Execution Petition by the petitioner on the premise that the so called Gift Deed executed in favour of petitioner by Narasaiah was a sham document, no such valid Gift Deed is executed by Narasaiah and as such they are entitled for possession of suit schedule property. In this view of the matter, the issue to be decided in this revision petition is whether order of dismissal of application IA-6 filed under Order 2 Rule 2 of CPC is just and proper and also as to whether the suit filed by respondents be tried as a separate suit.

(3.) The learned counsel for the petitioner argued that, petitioner had filed O.S. No. 8733/2011 for specific performance and obtained an order of decree. In execution of the same, he filed Execution Petition No. 411/2011. Respondents resisted the execution and filed separate suit O.S. No. 4715/2012 for declaration with respect to the Gift Deed that the same is null and void and not binding on them. In that suit, petitioner filed IA-6 to dismiss the suit on the ground that when the issues are settled by the Executing Court, considering the same issue once again in another suit is not proper and the suit is not maintainable. The learned counsel relied upon the decision of this Court in the case of Chandrakant Mallappa Desai & another v. Mishrimal, 1984 1 KarLJ 347, wherein it is held as under: